This is the sixteenth in the new series of blogs which will start with relevant extracts from the Bach Commission’s Final Report. These will be followed by the more detailed treatment I gave to the topic in one of the chapters in Appendix 5 to the Report.
I wrote the papers in this Appendix because I was keen not to lose the opportunity to provide in-depth treatment of important issues for which there would clearly be no room in the report itself.
In these last two papers the focus has turned to the need to help the vast number of people who do not go anywhere near a court but who badly need to be able to access a source of advice to help them with day to day problems which, whether they know it or not, are legal in nature and are ready-made for a legal solution. (The final paper will be on Public Legal Education.)
When David Pannick QC recently criticised the Commission in an article in The Times for promoting the ideas contained in Part One of the Report (because he thought that the common law provided everything we were looking for and that “money spent on a Justice Commission would be better spent on the provision of legal aid”), I cannot believe that he had read Chapter One with any great care. After receiving a large amount of very high quality evidence we wrote:
A broader conception of access to justice:
Access to the courts and access to justice are not synonymous. A lack of knowledge or information can prevent justice, as much as a lack of representation in the courts system. A new right to reasonable legal assistance includes the full spectrum of public legal education, information, advice and representation.
We believe it is the right time to consider these matters. The UK’s departure from the European Union provides an opportune moment to specify the right to justice clearly in the law of England and Wales. As Brexit re-establishes the primacy of domestic law and institutions of justice, there would be huge value in simultaneously articulating the domestic right to justice under the law….
The new right
We believe that everyone should have “the right to receive reasonable legal assistance, without costs they cannot afford”. It is possible that codifying existing law might lead to the development of this right over time. In particular, the judgment of the supreme court on what it means for justice to be “reasonably affordable” could have significant implications for the design of the means-test for legal aid. However current case law sets out fairly demanding conditions before legal aid is needed to achieve effective access to justice.
For this reason, the commission has concluded that the right to justice should be extended by statute. We propose that people are guaranteed access to “reasonable legal assistance” which they can afford. This is designed to be a lower threshold than the present guarantee of “effective access to justice”. In particular it would encompass legal information, advice and support before any litigation is commenced – the areas where public support has been cut back the most. The new right would guarantee a reasonable and proportionate level of support in the early stages of legal support, in contrast to the law’s existing focus on intensive, expensive support for unusual and complicated cases.
This modest extension of the existing right to justice should have the same constitutional status as the existing protection under the Human Rights Act. Individuals must be able to enforce the right through the courts and every decision taken by the government and every act of parliament must be compatible with it. Additionally we propose that a Justice Commission is established to scrutinise and develop the right to justice, including our proposed extension to it, which we discuss in more detail in chapter two.
I regard the Bach Commission’s report – and particularly the imaginative ideas contained in Part One – as merely the starting point for a debate which I hope can be conducted in a mature way on cross-party lines in the search of the optimum solution. Nobody who reads the last two papers in this series could be unaware that there is a major problem to be confronted. The search for a solution will not be enhanced by pretending that the problem does not exist.
1.EXTRACT FROM THE REPORT
Universally accessible advice
Most people who experience a legal problem are unlikely to recognise it as such. Even those that do may not know where to turn to: advice centres, law centres, legal aid practices, helplines and online portals are no use where people don’t know to visit them. Advice should therefore be easily accessible, clearly signposted, and situated in places where those most in need are likely to find it. It should also always be universally available; no-one should have to face a financial assessment in order to access basic advice about their legal rights, or to discover whether or not the problem they face is legal in character.
Online and on the phone
There are a range of charities and organisations who provide free advice on legal matters. These include well known websites like Citizens Advice and AdviceNow, and more specialised websites and helplines from organisations like AgeUK, Shelter, and Liberty. But many people, upon encountering a legal problem, would not know where to look. Lisa Wintersteiger [the chief executive of Law for Life] told the commission:
“[People] are also hindered from using digital help effectively because they struggle to frame their problems in a way that enables them to search for what they need. If they do find information, they are often unable to assess its quality and veracity properly. In addition, they cannot always correctly identify whether the information they have accessed applies to the relevant jurisdiction (for example, a user may be applying US law unknowingly to a UK legal problem).”
While organisations like AdviceNow have made valiant efforts to bring together various different advice services, the commission has concluded that there is a need for a centrally recognised and recognisable online brand, which people know to visit when they have a problem. Such a centralised portal would also mitigate against the risks of institutional memory loss, where rapid staff turnover, organisational or technology change leads to valuable information disappearing or becoming out-dated.
The commission recommends the introduction and maintenance of a centrally branded and easily navigable portal for online information and advice. This portal should signpost to different online services, hosted by different organisations such as Citizens Advice and AdviceNow, as appropriate. This site should be independent of government and subject to stringent quality control, and it could be provided by an existing provider, or providers, which responds to a government tender. The government should share information about this new central portal in communications about other matters such as health and education.
We should remain cautious about depending on online information alone. Research from earlier in the decade found that only 25 per cent of people use the internet to solve legal problems.[1] While there is every reason to believe that figure has risen and will rise still further, it will never compensate entirely for face-to-face advice.[2] Lindsey Poole, director of Advice Services Alliance, described online advice as like the fourth lane of a motorway; it will be widely used and does a very good job for those who can access it, but in and of itself it won’t help those with the highest need. It should be used as a mechanism for freeing up resources for more personally tailored help for those who need it, not a means of reducing what is often the most valuable aspect of advice – human contact.[3] This accords with the strategy adopted by Citizens Advice. 22 million people viewed their website last year – a significant increase on earlier years – while the numbers using their face-to-face advice have remained pretty constant.[4]
In person advice
In addition to online and telephone services, there are a number of organisations that provide advice in physical locations within communities. These include Citizens Advice, whose offices are situated around the UK, and law centres and legal advice practices, which have been closing at an alarming rate in recent years. Ministry of Justice research shows that the number of all not-for-profit legal advice centres fell from around 3,226 in 2005 to 1,462 by 2015. And, as we wrote in our interim report:
“More than half of the 700 who responded to the Ministry of Justice survey reported that they had client groups who they were unable to help due to lack of resources, expertise, or because they fell outside the centre’s remit.” [5]
These centres, along with other advice organisations, provide a vital service – from free information through to expert advice and representation funded by legal aid. In the context of today’s low levels of legal capability the commission is concerned by the loss of a physical place which members of the public can visit for free, initial support. For those people who do not use the internet or telephone helplines to solve their legal problems, these serve as vital signposting sites.
But returning to the pre-2012 system, when advice centres, law centres and legal aid practices provided expert support funded by legal aid, is not by itself the answer. Lindsey Poole told the commission that the target-based approach of the Legal Aid Agency, when it was responsible for issuing contracts to providers, “changed the way that [advice services] viewed services”. The questions providers would ask themselves, Lindsey Poole told us, turned from
“Does it meet the need? Does it meet our charitable objective in helping the most vulnerable to access social justice?”
to
“Have we had enough clients at this time in order to meet the contract that we had?”
Such an approach would also likely lead to too little support being given for small, specialist organisations delivering advice to niche communities.
To tackle this, the commission agrees that a shift is needed in the way that advice is delivered at the local level. As numerous providers are already doing, advice centres, law centres and legal aid practices must take their expertise out to their communities rather than just waiting for people to come to them. One way that this has been done successfully is through the provision of advice in GPs’ surgeries. As Lindsey Poole told us, services should be redesigned to
“take advice to health care settings, to the courts (including criminal) and to local non-advice voluntary organisations.”[6]
But sometimes this will not be enough. In communities which have little trust in authorities or the rule of law, there is a need for mediating figures who have the trust of both the legal profession and the community in question. In her evidence to the commission, Lisa Wintersteiger spoke of “trusted intermediaries”. These could be teachers, faith leaders or leaders of migrant groups. Advice organisations regularly work with them to deliver advice to hard to reach communities, who may have a problem understanding or trusting authorities.
The first report of the Low Commission discusses the example of Advice Services Coventry, which was a partnership – supported by local government – between the independent advice agencies in Coventry to coordinate the delivery of advice services in the city.[7] The network shared a website and a referral system, so clients could be directed to the most appropriate resource. Additionally, Coventry Law Centre set up several partnerships with non-advice voluntary organisations, such as the city’s ‘Troubled Families’ scheme and local Community Based Champions, to deliver advice to people in the settings where they are likely to require it.
The Low Commission called for the creation of a £100m fund, with half the funding coming from government (to be administered by the Big Lottery Fund), and half from a combination of other local and national statutory, commercial and voluntary providers.[8]
We echo this call, and support the introduction of a new, ring-fenced fund for advice providers who are able to evidence the effectiveness of their approach to delivering advice to people within their communities.
2.APPENDIX FIVE TO THE REPORT
CHAPTER 16: Advice Services
1.The Advice Services Alliance
The Advice Services Alliance (ASA) is the umbrella group for the social welfare legal advice services across the UK. Founded in 1980, it works to promote better co-operation between advice organisations and to improve the quality of advice given to the public. It also encourages research and undertakes projects which address issues which relate across the advice sector. It has eight membership organisations who are themselves network bodies and who together represent about 1,4000 advice-giving organisations. It now has one full-time member of staff: its director Lindsey Poole.
Written and oral evidence from the ASA was given to the Commission by Lindsey Poole on 21 June 2017 and is to be found in Appendix 4. This note covers a few matters that are not be found there.
The Advice Quality Standard
The ASA inherited the Advice Quality Standard from the Legal Services Commission. This is the only sector-owned, independently audited standard that focuses on advice. It is awarded to organisations that give advice to the public on legal issues. Organisations are audited every two years and have to demonstrate that they are accessible, effectively managed, and employ staff with the skills and knowledge to meet the needs of their clients. Most of the Alliance’s work is devoted to delivering the standard to about 700 organisations[9] and to its general oversight of how the standard is working. This gives it direct contact with all the organisations involved.
Health Outcomes of Advice
The Alliance conducted a joint evidence review with the Low Commission, which culminated in a report published in 2015[10] which contained the key findings from 140 research studies in the field, and an overview of 58 integrated health and welfare advice services. A clear message came from these wide-ranging sources to the effect that welfare advice in health care settings results in better individual health and well-being, and a lower demand for health services.
This was a very big assignment, which showed that the people the Alliance wanted to help are very often to be found in health settings. Its key findings have been summarised[11] in these terms:
“The provision of good welfare advice leads to a variety of positive health outcomes and in addition addresses health inequalities highlighted in the Marmot Review 2010. The effects of welfare advice on patient health are significant and include:
Lower stress and anxiety;
Better sleeping patterns;
More effective use of medication;
Smoking cessation; and
Improved diet and physical activity.
These findings are important in the context of addressing the wider social determinants of health and suggest that stronger collaborative working across a range of sectors is required. In particular, there is demonstrable evidence that when advice and health sectors work more closely and strategically to meet advice needs this contributes to reducing health inequalities. Direct commissioning of welfare advice services within specific health settings is most effective as it targets the most vulnerable within settings which they trust and where their specific health needs are understood.”
The Advice Services Transition Fund – Learning and Support
In January 2014 the Alliance was awarded the Big Lottery Fund contract for providing Learning and Support to the 226 Advice Services Transition Fund partnerships. This formed part of a post-LASPO Cabinet Office/ Big Lottery initiative to promote better, more sustainable local advice provision. The work included setting up a website which provided useful links, resources and information at local level for practitioners working in the local partnerships. This project ended in 2016.
2. Citizens Advice
Statistics[12]
Advice is provided from 600 local Citizens Advice (CA) premises and over 2,250 courts, community centres, doctors’ surgeries and prisons across England and Wales. 99.7% of the population can access a local CA unit within 30 minutes’ drive from their home.
More than 800 staff work for CA, and across the network its service is provided by more than 23,000 volunteers[13] and 6,500 staff.
They dealt with 6.2 million issues.[14] They helped 2.7 million people in the following ways:
- Face to face 50%;
- By telephone 40%;
- By email/webchat etc (10%).
Through their website they received 36 million visits[15] for advice (55 million page views). In their 2016 report on digital capability[16] CA said that in a survey of 3,000 “face to face” clients twice as many of them were likely to lack basic digital skills and that they were also more likely to lack digital access compared with the general population.
Nearly 3 in 4 clients said that their problem affected their lives, referring among other things to anxiety and financial difficulties.
Using a Treasury-appointed model,[17] CA states that for every £1 spent on them, they benefited their clients by £11. They saved the Government and public services at least £361 million, and they estimated their social and economic value to society to be £2 billion.
Their total income for their national office was £108.6 million (£88.2 million in 2015). Their core income from the Department of Business, Innovation and Skills (BIS) was flat in cash terms, but they received two new sources of income: from the Ministry of Justice (MOJ) contract for the Witness Service (£11.7 million) and from HM Treasury for Pension Wise guidance (£13.8 million).
This Table provides a snapshot (in £million) of the sources of their income in 2011-2, 2013-4 and 2015-6.
| 2011-2 | 2013-4 | 2015-6 | |
| BIS Core | 18.9 | 22.1 | 22.3 |
| BIS Consumer | 0 | 9.3 | 15.7 |
| BIS Projects | 10.1 | 8.3 | 0 |
| Money Advice | 17.9 | 19.5 | 23.9 |
| HM Treasury | 0 | 0 | 13.8 |
| Ministry of Justice | 0 | 0 | 1.7 |
| Welsh Government | 1 | 3.9 | 5.4 |
| Other Public Sector | 2.6 | 2.2 | 0.4 |
| Other income[18] | 12.2 | 11.9 | 15.4 |
| Total. | 62.7 | 77.2 | 108.6 |
Unrestricted core income is static. The growth is in restricted funds. The income of the local offices is recorded separately. The CA Service received £37 million in funding from all sources.
The national office increased its grant funding to local offices by almost 50% to £44.2 million, and it helped local offices to secure 319.2 million funding from local services.
Overall view[19]
Overall the Citizens Advice network is holding up fairly well. Investment in a digital presence and in webchat advice has helped to combat the presence of advice deserts on the ground.
22 million people looked at the CA website. This is a very great increase on earlier years. Face to face advice has remained broadly constant with the demographic largely remaining the same. CA has worked hard to open up a range of channels, not just telephone. Now the website and digital channels are enabling it to reach more people in different ways that are built around their needs.
Raising awareness about what the service does remains a constant challenge. It can feel as if it is sometimes just by luck that people come to the service. CA has found through extensive user testing for the rebrand that the name “Bureau” put people off: hence the change that was recently made. CA has got to bang the drum, to explain that the advice sector is part of the solution. Proper frontline advisory support must be in place. Otherwise the particular problem will move elsewhere and will be more costly to solve.
CA would say that it can never meet all the demands. The environment is tough out there for clients. One of the strengths of the network is that the local offices can be imaginative, and they are constantly seeking new ways to reach more people
There is no big gap in advice provision. CA constantly watches the map, providing support to its network. Every year so far it has managed to hold up and continue to provide services to clients.
Local authorities as commissioners of advice services
There is evidence of local authorities (LAs) being poor at commissioning advice services. They pick the high-volume services they are obliged to fund, with a growing preference for social care and housing. It can be very hard for a local office to say “no” to the ‘bundling’ of services. They are innovative and keen to take on new responsibilities, but they need to protect the CA brand and the business.
Another tension arises because Citizens Advice is lumped together with different funding streams for different agencies within the voluntary sector spend at local level. This translates itself into examples like these:
A LA can put all its grant funding to the Voluntary & Community Sector into a single pot and invite consortia bids; or
It can put “advice” into a pot with an associated voluntary sector funding stream such as community car driving schemes or library services.
The “Troubled Families” scheme provides a flip side. The Government used to provide a ring-fenced pot. Now it has reduced the fetters on the money it provides for advice services. CA encourages its offices to hold on to the things they are good at.
Key workers in the Troubled Families scheme are now trying to give advice on discrete topics such as debt advice. How well this works depends on the quality of the adviser. The Troubled Families Progress Review[20] provides some useful lessons.
CA has raised a lot of money nationally which has enabled it to increase national programmes of delivery that are delivered locally through its network. It encourages good relationships with local authority funders beyond just talking about money. In the next two years local authorities may run into problems unless they receive new funding. The black hole in local authority finances has been widely reported on.
CA has been trying to persuade local offices to rebrand their product with LAs and thereby encourage LAs to view local offices differently. Advice agencies should be seen as part of the solution LAs can provide, and not as a problem.
There is nothing to be gained by loud protests about what is happening. There is no magic pot of money. The sector has got to do our best with what it has. Constant policy shifts waste a lot of money.
The sector needs to bang the drum about the quality of commissioning. If it is done well, it recognises the needs of the local communities. The Social Value Act isn’t being properly used.[21] How do you get good quality public sector commissioning? Quality commissioning and skills commissioning are both so important. The question should be: how do we get this money out to help as many people as possible? – a focus on outcomes for individuals and communities and not one on outputs.
Good quality advice is valued in a relationship which functions well at local level. Every part of the engagement has to be business-focused.
There is quite a churn of people coming and going at LA level, especially with commissioners. This makes it a tough ask for a local office to maintain a network of local relationships to ensure the LA understands both the role and the value of the service which is provided.
Who is the champion of the advice sector?
There is an unresolved issue as to who is the champion of the advice sector. Is it local government? Or national government? Or the Cabinet Office? CA has submitted “manifesto asks” on this ownership issue. Government should require local authorities to devise a five-year strategy for funding advice services.[22] CA gave written and oral evidence to the Select Committee on charities about this issue.
Funding the advice which will be required whenever policy changes
When public policy changes, Government sometimes recognises that it must meet a demand for advice in order to make the policy work. Pension reform is a good example. Money was made available to enable consumers to know what to buy and where to seek reliable advice, given their new-found freedom to withdraw their money from their pensions pot. That was a good model.
[1] See the written statement of Law for Life in appendix 4 at p. 73.
[2] Shelter referred the commission to a valuable research report in 2015 which identified the different roles played by face-to-face, telephone and online services in getting people the help they need. Accessed September 2017: https://england.shelter.org.uk/__data/assets/pdf_file/0005/1053662/2015_16_01_TNS_BMRB_The_future_role_of_digital_housing_advice_and_support_Research_Report.pdf
[3] See the evidence of the Advice Services Alliance in appendix 4 at p. 86.
[4] See appendix 5, chapter 16.
[5]The Bach Commission. (2016) The crisis in the justice system in England and Wales. Accessed September 2017: http://www.fabians.org.uk/wp-content/uploads/2016/11/Access-to-Justice_final_web.pdf
[6] See the evidence of the Advice Services Alliance in appendix 4 at p. 86
[7] Low Commission. (2014) Tackling the Advice Deficit, p. 59. Accessed September 2017: http://www.lowcommission.org.uk/dyn/1389221772932/Low-Commission-Report-FINAL-VERSION.pdf
[8] Low Commission. (2014) Tackling the Advice Deficit. Accessed September 2017: http://www.lowcommission.org.uk/dyn/1389221772932/Low-Commission-Report-FINAL-VERSION.pdf
[9] These include all Citizens Advice offices, about 80 AgeUK offices and various independents.
[10] Sir Michael Marmot wrote the Foreword to the report.
[11] Advice Services Alliance and the Low Commission. (2015) Welfare Advice and Better Health, The Role of Advice Services in Health Outcome; Executive Summary. Accessed September 2017: http://asauk.org.uk/the-role-of-advice-services-in-health-outcomes/
[12] Statistics are for 2015-6, unless otherwise stated.
[13] Volunteers donated about £114 million worth of volunteering hours.
[14] 0.2 million were categorized “legal”.
[15] 2.6 million were categorized “legal”. 46% used a desktop or laptop for access, 41% a smartphone and 13% a tablet.
[16] Citizens Advice. (2016) Digital capability: Understanding the digital needs of face-to-face clients of Citizens Advice. Accessed September 2017:
https://www.citizensadvice.org.uk/Global/Public/Impact/Digitalcapabilityreport_final_July%20(3).pdf
[17] See Citizens Advice (2016) Technical Annex: Modelling our value to society in 2015-16,. Accessed September 2017: https://www.citizensadvice.org.uk/Global/Public/Impact/ModellingthevalueoftheCitizensAdviceservicein201516.pdf
[18] Corporates, charities, donations, trading.
[19] The remainder of this note is based on what was said at a meeting between Sir Henry Brooke & Julie Bishop with Julia Gillies-Wilkes & Andrew Seager (who are senior executives within Citizens Advice) on 3 May 2017.
[20] House of Commons Public Accounts Committee. (2016) Troubled Families: Progress Review, December 2016 Accessed September 2017: https://publications.parliament.uk/pa/cm201617/cmselect/cmpubacc/711/711.pdf
[21] A Cabinet Office Note says: The Public Services (Social Value) Act came into force on 31 January 2013. It requires people who commission public services to think about how they can also secure wider social, economic and environmental benefits. Before they start the procurement process, commissioners should think about whether the services they are going to buy, or the way they are going to buy them, could secure these benefits for their area or their stakeholders. The Act is a tool to help commissioners get more value for money out of procurement. It also encourages commissioners to talk to their local provider market or community to design better services, often finding new and innovative solutions to difficult problems.
[22] The final section of this Manifesto states:
Invest in advice to support people through change and uncertainty
- Use fines levied against companies such as banks, energy and telecoms to help meet people’s needs for advice services.
- Make advice available in GP surgeries and mental health settings to help people to solve the social issues that cause and exacerbate health problems, and relieve the pressure on the NHS.
- Provide information, education and advice to people worried about the impact of Brexit on them and their family.
- Require local authorities to develop a 5-year strategy for the provision of advice in all communities.
- Ensure that the Social Value Act is fully taken into account in public sector commissioning to recognise the value of volunteering to individuals and communities.
Henry Brooke 