Last weekend, I attended a lawyer’s conference – ghastly concept, I know; it involved no natural lighting throughout a beautiful weekend. I got to cope by staying in my camper in beautiful places instead of at the conference venue, but that’s another matter…
The conference explored changes to the legal landscape, and therefore along the way the new LASPO Act, with its slashing of legal aid scope, and its new provisions regarding success fees and damages based agreements. Categorically and emphatically, I did not detect any kind of glee over a move from the former to the latter; but there was a certain resignation at the inevitability of it.
Meanwhile, out here in the social media world, there have been the early rumblings of warnings that “benefits sharks” are back, people offering to help those with benefits problems, then ripping them off for a cut of the “winnings”. The warnings are exacerbated, of course, by the coincidence in time of the Welfare Reform Act 2012, which replaces Disability Living Allowance with Personal Independence Payments requiring 3.2 million claimants to be reassessed for the more restrictive benefit.
These two pictures (resigned professionals or rip-off merchants) are completely different, but are they in fact looking at exactly the same phenomenon from two different angles? And if so, do I have any chance of trying to show each side the perspective of the other?
Well, I’m going to try. And this is why. I imagine that there are many people like me, who have spent years advising on social welfare law under legal aid, who are wondering how on earth we can carry on helping people in a post-legal aid world. And a model that involved charging the successful has to be engaged with.
Lemon soaked paper napkins
In Hitchhikers Guide to the Galaxy, there is a scene where Ford Prefect is stranded on a spaceship on a desolate world, arguing with the autopilot:
Autopilot: Transtellar Cruise Lines would like to apologize to passengers for the continuing delay to this flight. We are currently awaiting the loading of our complement of small lemon-soaked paper napkins for your comfort, refreshment and hygiene…
Ford Prefect: Delay? Have you seen the world outside this ship? It’s a wasteland. A desert. Civilisation’s been and gone. It’s over. There are no lemon-soaked paper napkins on the way from anywhere.
Autopilot: The statistical likelihood is that other civilisations will arise. There will one day be lemon-soaked paper napkins. Until then, there will be a short delay. Please return to your seat.
My first encounter with legal aid was twenty years ago, when in 1992 I was appointed to a Citizens Advice Bureau to run a pilot in a new experiment called franchising. And I stayed engaged, eventually as Principal Solicitor at the charitable Birmingham Law Centre, to see a series of changes. The carrot (we’ll pay more if you subscribe to our quality standard) became a stick (we won’t pay you anything unless you subscribe to our quality standard). The voluntary and charitable sector were reeled in on a line with more favourable contracts than private practice; and once they were critically dependent on legal aid, were told ‘now we’re going to treat you just like private businesses’. We were told how to structure ourselves, told we must develop new specialisms to order – this was a centralised, supply-led i.e. government-led business model – given ever more interminable contracts to sign. The advice sector, entranced, followed the Pied Piper’s fiddle.
This history is relevant to Ford Prefect’s analysis. Because the charitable advice sector was reeled into legal aid, the charitable advice sector shares in the consequences of legal aid’s decimation. The wasteland, in my analogy, is the advice deserts that have already arisen, and those that will now be arising, because of the changes to legal aid and specifically its withdrawal from social welfare law.
Money for old rope?
In my potential newly cast role as public enemy number one – because I have told you charging people for benefits advice has to be engaged with – I have to ask myself a question. Others have already made the analogy with claims management companies and bank misselling. Is charging people for benefits advice, like charging people for claiming from the banks, simply money for old rope? Is it something that claimants would do better without help?
Ironically, that view resonates with the government’s view of legal aid. The official view, I remember being told, was that filling in benefit forms was an administrative, not a legal task. The legal expertise, we were told, is rather in asking the right questions, and in advising on the answers. Meanwhile in the real world, people came though the doors seeking help to fill in forms – so we did it anyway, whatever the official view.
And with good cause. Because filling in benefit claim forms well involves walking a tightrope between two dangers. Be reticent about the extent of your disability, and you will be denied benefit to which you are entitled. Exaggerate it, and you run the risk of a fraud investigation, and worse.
And there was a gap in the scheme when it came to appeal hearings. Legal aid covered initial advice; legal aid could cover court cases. But it did not cover social security tribunals. Faced with this funding gap, many organisations left their clients in the lurch at the critical point – when their clients wanted their representative beside them in the tribunal room. The organisations I worked for knew that representation was exactly what the clients wanted, and did it for free anyway.
My point is this. I simply do not agree that assisting claimants to secure their entitlement is money for old rope. And frankly, I don’t think that claimants think so either. Disability Living Allowance appeals at present, for example, unlike missold PPI, are heard by a panel including a judge and a doctor. If it were money for old rope, claimants wouldn’t be as concerned as many are, that they will end up without their benefits. If filling in benefit forms were a straightforward and risk-free task, if appeals take the same course whether you are represented or not, claimants wouldn’t seek assistance.
OK, so let’s assume that you are persuaded that a welfare rights adviser might have some expertise worth tapping into. Is it outrageous to pay for that assistance? To set my cards on the table, I have now left the legal aid world for private practice – in part, in anticipation of its demise. I am professionally obliged to advise people about potential alternatives to paying, and I do so. I have never yet taken a success fee (not because I’ve never been successful, but because I’ve never gone down the route of offering one), but I do charge for a living.
If you think it is unacceptable to live in a world without lemon soaked paper napkins, or free legal advice, it is open to you to reject paying for advice, to chase the ever diminishing supply of appointments with the ever more precariously funded agencies still hanging in there. Or indeed to put your life on hold until a new civilisation emerges with lemon soaked paper napkins and free legal advice for social welfare.
But I put forward the suggestion that paying for advice – even on a no-win no-fee basis – is not a decision to be avoided at all costs. Those claimants who pay the full success fee have plainly lost out by paying disproportionately more than the actual value of the advice. But here’s the payback: in the absence of legal aid, many cannot afford the actual value of the advice. The unsuccessful have received a subsidised service, and the successful have received a service they may well have been unable to either locate or afford up front.
…back to the lemon soaked paper napkins
There will be a need to keep a careful eye on a marketplace that might be ripe for exploitation – though it’s worth pointing out that those who don’t bring success can’t attract success fees and so will fail… But some of those offering to take money are resigned realists like Ford Prefect, and there is a risk of opposing it on autopilot.
Autopilot: We are currently awaiting the loading of our complement of free legal aid for social welfare law.
Ford Prefect: Get real. Civilisation is over. Legal Aid for social welfare law has been legislated away.
Autopilot: Civilised societies have legal aid for social welfare law. One day we will be a civilised society again. Please do not pay for help with your benefit problems.