SCOTTISH GOVERNMENT SPENDING REVIEW AND WHITE PAPER ON LEGAL AID REFORM

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1 CIVIL LEGAL AID EFFICIENCY SAVINGS PROPOSALS INTRODUCTION Following the publication of the Scottish Government Spending Review and the White Paper, A Sustainable Future for Legal Aid, the Society s civil legal aid negotiating team has prepared this paper to update practitioners on the challenge of the cuts ahead. The paper outlines the government s proposals in the White Paper for civil and children s legal aid and makes alternative proposals for savings to be made. We would be very keen to receive members views on either the White Paper proposals or the possible alternatives and would ask practitioners to andrewalexander@lawscot.org.uk with any comments on this paper or any other aspect of the proposed changes to civil and children s legal aid. SCOTTISH GOVERNMENT SPENDING REVIEW AND WHITE PAPER ON LEGAL AID REFORM The current climate for public finances in Scotland is extremely difficult and further savings to the Justice budget in Scotland and to legal aid have been outlined in the Strategic Spending Review and Draft Budget The outcome of this process sees the budget for legal aid reduced significantly: Legal Aid Fund 142.3m 144.1m 138.1m 132.1m SLAB Grant-In-Aid 11.8m 11.7m 11.2m 10.7m Total Legal Aid 154.1m 155.8m 149.3m 142.8m The White Paper, A Sustainable Future for Legal Aid, outlines various areas in which savings could be made to civil and children s legal aid. There are four themes for the reforms to legal aid and the savings quoted are per annum savings by FOCUSING LEGAL AID ON THOSE WHO NEED IT MOST The measures under this theme estimate a saving of between 4.5-5m (a large proportion from the move to contributions for criminal legal aid). Proposals relevant to civil and children s practitioners include: Extending the eligibility period for advice and assistance from the current seven day eligibility window; Legal aid as a last resort ensuring that legal expenses insurance is verified and the use of no win, no fee arrangements; ENSURING WIDER ACCESS TO JUSTICE THE RIGHT HELP AT THE RIGHT TIME This second theme of the White Paper has no estimated savings, though concentrates on wide-scale reform of court and tribunal structures, the encouragement of pro bono, empowerment of citizens through public legal education, triage of legal problems and the encouragement of alternative dispute resolution. MAXIMISING THE VALUE OF LEGAL AID EXPENDITURE The third theme is maximising the value of legal aid expenditure. Proposals include:

2 Savings from the programme of SLAB Best Value Reviews of around 2-3m, including recent reviews into mental health and disability and immigration and asylum and work on bar reports; The introduction of contracting for criminal work (the mechanism for which can be laid by regulations and which is estimated to save 3m) the White Paper notes civil contracts may be a useful way of managing areas of lack of supply and targeting legal services though primary legislation would be required for the introduction of contracting to civil and children s work. A review of the use of counsel and counsel s fees (particularly travel) with a saving of around 2.1m; Review of the fees paid to solicitors sitting behind counsel, and the additional fees available and exceptional case status in civil, with savings of around 1.6m; And the White Paper notes the measures outlined above might not deliver the savings originally forecast. In many other jurisdictions it has already proved necessary to move ahead with across the board fee cuts. The Government, with the Board, will closely monitor the situation and come forward with further proposals if that proves necessary. MAKING THE JUSTICE SYSTEM MORE EFFICIENT This deals with changes to the court systems, implementation of Gill reforms, and a right first time approach to reduce the number of government and public body decisions challenged on appeal. There are two proposals with a direct impact on civil and children s legal aid: A review in the short, medium and longer term on family legal aid expenditure to make savings and improve outcomes without lessening access to justice; The increased use of videoconferencing in court proceedings (and also in criminal for prison visits and police station advice) to make a saving of 1.2m. LAW SOCIETY PROPOSALS FOR EFFICIENCY SAVINGS The package of measures suggested by the Society s civil legal aid negotiating team below - alternative proposals, rather than additional - would achieve savings of up to 3m: we believe that the parameters are reasonable and that the proposals are in keeping with the themes expounded by the SG White Paper. CIVIL LEGAL AID ELIGIBILITY Proposal: reverse the increase in eligibility to 25,000 of disposable income that was introduced in 2009 Saving: 325, ,000 The change to the eligibility requirements for civil legal aid in 2009, which saw the disposable income limit increase to 25,000, was estimated to bring around 70% of the population into the reach of civil legal aid. We believe that in this difficult financial climate, it is important that resources for civil legal assistance are refocused onto those in society that can least afford it and recommend that this eligibility increase is reversed. The White Paper itself sets as a theme of focusing legal aid on those who need it most. Modelling carried out by SLAB before the change was introduced estimated that around 1,700 cases each year would now be included in eligibility and that the additional cost to the Legal Aid Fund would be around 1.3m per annum.

3 More recent estimates from SLAB suggest that saw only 616 cases, substantially less than the original estimate and that only around a third of these cases had been concluded, which makes assessment of the overall cost more difficult. Of the cases that had completed, these were likely to have been the less complex cases and this is supported by the SLAB analysis of the gross cost of these cases at Part A. We think that it is realistic that the savings from removing the increased eligibility would be between 25% and 75% of SLAB s original estimate. It is also recognised that in removing such cases from eligibility, there will be a saving to SLAB administration in not having to process, assess or collect contributions in these cases. We appreciate the importance of ensuring access to justice, and the important role that legal aid plays. However, in these difficult economic times, we believe that it is important to focus on those who need legal aid the most. We feel that those who fall into the higher end of the eligibility scale ought to be supported and encouraged to find alternative means of accessing justice, without recourse to the legal aid fund. This may be achieved, for example, through greater public legal education. Despite the change to the eligibility threshold, we believe that there should remain an exceptional case status for applicants who do not qualify for the revised threshold, to ensure that legal aid can remain available as funding of very last resort where in the public interest. A further suggestion on eligibility is that it would be useful if part of the assessment for the provision of legal advice and assistance was to consider tax credits as an element of income, with a deduction for child care costs. And it also may be that the current banding system could be changed, as it is currently extremely complicated, particularly to explain to clients. BAR REPORTS Proposal: bar reports over 3,000 require sanction from SLAB to ensure effective expenditure of public funds Saving: 300, ,000 We believe that the use of bar reports is vital to resolving family law matters and welcome the Scottish Government s recent research that found, Bar reports are an invaluable fact finding mechanism that may enable parents to reach agreement. In , from an FOI request from the civil team to SLAB, 1,521 individual cases saw expenditure of 4,157,883 on bar reports, at an average cost of 2,734. This amounts to 8% of the projected civil legal assistance expenditure for (which is likely 51.9m). The breakdown of this cost by court area, according to the FOI response, is detailed at Part B. The breakdown of this cost by the number of reports per court area is included at Part C. We believe that bar reports paid from public funds should be subject to some control, with bar reports over 3,000 in expenditure subject to approval by SLAB. If the reporter s time and line account will exceed 3,000, the reporter will request increased expenditure from SLAB, as with advice and assistance and other accounts. Prior to exceeding this limit, if the reporter believes that their work will exceed [x] miles in travel, [y] interviews with individuals or any travel outside the jurisdiction, this would also need approval by SLAB. We also believe that bar reporters should be pegged to a specific hourly rate. We also agree with the recommendations of the government s research, namely transparency over appointment to the lists of bar reporters, a consistent and uniform approach in the appointment of bar reporters across sheriffdoms, and clarity in the qualifications and experience required of reporters. These steps, we anticipate, would lead to greater consistency across the country and more effective bar reporting in individual cases. EXPERT FEES Proposal: set tables of fees for expert witnesses, which would see a cut to fees of around 15%

4 Saving: 600,000-1,200,000 Outlays for civil legal aid amount to 10.5m compared to solicitors fees for the same of around 17m and a net cost of civil legal assistance of around 47m. There is a significant variance in expert fees for civil work (for instance, child psychologists available for between 60 and 200 per hour). While solicitors and advocates have taken significant cuts in and will face the same in future years, the expenditure for experts has remained largely unchecked. We note a similar exercise taking place in England and Wales, where tables of fees for experts have been laid into regulations for the first time and have been calibrated to achieve a 10% cut to their fees. We believe that this approach could bring significant savings in Scotland. We would also be keen to encourage the culture within the profession of looking to protect the Legal Aid Fund. Money spent on experts, while vital in a range of cases, may be less useful in other cases; also, money spent on experts puts pressure elsewhere in the civil legal assistance budget. COURT EFFICIENCY AND THE USE OF TECHNOLOGY In the current economic climate, we believe that there is scope for the Scottish Government to make significant savings to the legal aid budget by reforming court procedures. Streamlining court procedures, rules and administration could cut down on waiting times and create more efficient working practices. For example, we have received feedback from civil legal aid practitioners that courts routinely have different Sheriffs allocated to the same child welfare hearings at various stages of the process. A different Sheriff often takes a different approach to the case, meaning that cases often continue for longer than necessary. We believe that a child welfare hearing should be heard by a single Sheriff. This would ensure consistency of approach and mean that cases would be more likely to be resolved at an earlier stage in the process. We believe that this would create a more economical and efficient system. We also believe that the Scottish Government should seek to maximise the use of electronic working within court administration to make improvements while reducing costs to the taxpayer. Where a technology is available that can improve the efficiency of court business, we believe that the courts should make the greatest possible use of the technology. For example, the implementation of electronic court reporting could make use of audio recording equipment to record courtroom proceedings and there could be a presumption against using shorthand writers for this purpose. A further presumption could be that experts outside the jurisdiction give evidence by video link. We suggest that the use of technology is fully investigated as a method of making significant savings and as an alternative to direct legal aid cuts, over and above the focus on videoconferencing raised in the White Paper. NEXT STEPS The civil legal aid negotiating team welcome and encourage views from practitioners on the effect of the cuts in the White Paper, the viability of the savings suggested by the team and the impact on access to justice We will meet with SG and SLAB to understand the detail of the proposals in the White Paper and update members on that discussion. In conjunction with the criminal legal aid negotiating team, we will also make available a paper on the experience of contracting legal aid from other jurisdictions, and the kinds of models of contracting that can be used.

5 PART A CIVIL LEGAL AID ELIGIBILTY TOTAL CONTRIBUTION Total Contribution Number out of the 616 grants of civil legal aid As a percentage of 616 grants of civil legal aid Total ESTIMATED CASE COST Est Cost Case Number out of the 616 grants of civil legal aid As a percentage of 616 grants of civil legal aid 0-1, ,001-2, ,001-3, ,001-6, ,001-10, ,001-15,

6 Over 15, Total TOTAL GROSS CASE COST Total Case Cost Frequency Valid Percent Nil Claim <= Total

7 PART B BAR REPORTS BY COURT AREA Court Number of cases Total value including VAT Average Value ABERDEEN 36 98,001 2,722 AIRDRIE ,741 2,576 ALLOA 18 48,609 2,701 ANGUS 1 1,308 1,308 ARBROATH 45 53,491 1,189 AYR ,916 3,841 BANFF 1 2,766 2,766 CUPAR 9 12,383 1,376 DINGWALL 3 10,250 3,417 DUMBARTON ,285 2,967 DUMFRIES 18 37,387 2,077 DUNDEE ,427 1,946 DUNFERMLINE 46 72,913 1,585 DUNOON 7 11,080 1,583 DUNS 2 6,668 3,334 EDINBURGH ,530 3,183

8 ELGIN 13 28,911 2,224 FALKIRK 53 63,846 1,205 FIFE 1 1,565 1,565 FORFAR 16 43,114 2,695 FORT WILLIAM 4 12,081 3,020 GLASGOW ,178 3,180 GREENOCK 14 31,038 2,217 HADDINGTON ,051 4,002 HAMILTON ,646 2,464 INVERNESS ,727 4,655 JEDBURGH 7 24,174 3,453 KELSO 1 4,976 4,976 KILMARNOCK ,257 2,742 KIRKCALDY ,976 1,924 LANARK 15 38,941 2,596 LINLITHGOW 21 80,594 3,838 LIVINGSTON ,835 5,073 OBAN 5 15,152 3,030 PAISLEY ,602 4,107

9 PERTH 33 75,321 2,282 PETERHEAD 2 5,834 2,917 PORTREE 1 3,038 3,038 ROTHESAY 1 4,278 4,278 SELKIRK 11 21,823 1,984 STIRLING 21 67,800 3,229 STRANRAER 2 4,769 2,384 TAIN 3 4,920 1,640 THURSO 1 1,993 1,993 WICK 6 19,864 3,311 OTHER 25 61,580 2,463 TOTAL ,157,883 2,734

10 PART C BAR REPORT COSTS BY NUMBER OF REPORTS This graph marks each sheriffdom in its split between the number of bar reports and the average cost of a bar report. This average bar report cost varies widely, though there is no clear indication that there are economies of scale to be found, with the jurisdiction with the most bar reports being around the average cost per report.