This paper sets out for consultation proposed changes in the way in which we intend to deliver publicly funded legal services in the areas of immigration and asylum.
The consultation is aimed at both professionals and members of the public in England and Wales. This consultation is being conducted in line with the Code of Practice on written Consultation issued by the Cabinet Office. It falls within the scope of the Code. The Code criteria set out in Annex A have been followed.
We invite recipients to comment on the proposals by responding to the questions set out in the consultation paper. A list of these questions is given at the end of the paper.
We are using this consultation exercise to scope the impact of the proposed changes on businesses, charities and the voluntary sector. A regulatory impact assessment will be drawn up once we have received the responses to the consultation exercise, and in this regard those responding may wish to pay particular attention to questions 6 and 9 in the list which appears at the end of the paper.
Copies of the consultation paper are being sent to:
the judiciary
the Law Society and Bar Council and other professional and representative bodies including ILPA, LAPG
Citizens Advice
HM Treasury, Cabinet Office, Home Office, Court Service, Legal Services Commission, Legal Services Ombudsman
This list is an indication of the recipients of the consultation paper; a full list is available on request from Mr Muhammud Islam (see How to respond).
Please send your response by 27 August 2003 to:
Mr Muhammud Islam
Lord Chancellor's Department
Public Legal Services Division
3rd Floor
Selborne House
54-60 Victoria Street
London SW1E 6QW
Tel: 0207 210 8762
Fax: 0207 210 8780
Email: Muhammud Islam
We should appreciate receiving responses to this consultation (if possible by email) in MS Word.
Representative groups are asked to give a summary of the people and organisations they represent when they respond.
The Department may wish to publish responses to this consultation document in due course. Please ensure your response is marked clearly if you wish your response or name to be kept confidential. Confidential responses will be included in any statistical summary of numbers of comments received and views expressed.
Further copies of this consultation paper can be obtained from Mr Muhammud Islam at the above address or by phoning 020 7210 8762
The Government is committed to the provision of publicly funded legal services as a means of promoting social justice, economic well being and tackling social exclusion. In the area of immigration and asylum, the Government is committed to protecting people where they are at real and immediate risk of loss of liberty or life. However the Government is also under a duty to ensure that the taxpayer receives value for money in relation to public service expenditure. Legal aid has to compete with other calls on the taxpayer's money, such as schools and hospitals. The resources available for funding are limited and any publicly funded system must be clearly focused on delivering effective and sustainable services within an agreed budget.
Since 2000 only firms with a contract with the Legal Services Commission (LSC) have been able to carry out legally aided immigration work. There are currently 617 contracted suppliers throughout England and Wales. The LSC carries out audits on all its contractors and assesses their claims for costs.
The legal aid costs of providing advice and representation in immigration and asylum work (including judicial reviews) have risen from £81.3m in 2000-2001 to £129.7m in 2001-2002 and £174.2m in 2002-2003. A number of factors have increased expenditure on legal aid for immigration and asylum, some of which are beyond the control of the LSC. These factors include continued increases in the number of asylum seekers, the increased rate at which cases are processed by the Home Office, the corresponding increase in appeals dealt with by the Immigration Appellate Authority (IAA) from 19,395 appeals determined in 2000 to 64,125 in 2002, and effects of the dispersal policy. With the introduction of funding for representation before the IAA and IAT (Immigration Appeals Tribunal) it was anticipated that there would be a rise in total spend however these factors together do not account for the dramatic acceleration in only the last three years in the costs of public funding in this area of law. Average costs continue to rise and the LSC estimates that average costs per matter start have increased by 93% from 2000-2001 to the present date.
We believe that focused written representations in initial applications and representation on appeal in meritorious cases can add major value to the asylum process as a whole. However we continue to have concerns regarding the quality of the work undertaken by a significant minority of immigration suppliers. Regular audits and peer review by the Legal Services Commission have highlighted over-claiming and issues regarding the quality of the advice given.
There is evidence of duplication of work. Although in 2002 there were 85,865 asylum claims, the LSC issued over 158,000 new matter starts in immigration. It is recognised that the figure of 158,000 will also represent starts in non-asylum matters and that there will also be legitimate reasons why some clients need to change representative. However this does not explain the position entirely and there is evidence of clients 'shopping around' for advice and of suppliers continuing to pursue unmeritorious cases through public funding.
Additional measures have been introduced to more closely monitor and regulate immigration and asylum spend. These include removing devolved powers from suppliers in judicial review cases so that suppliers need prior authority from the LSC before undertaking immigration or asylum judicial reviews. The guidance on granting funding for representation before the asylum appeal courts has also been tightened. However the measures have not been sufficient to ensure that immigration and asylum work falls within budget.
In a situation where funding is limited then decisions need to be taken on whether the current provision of services in asylum and immigration offers best value for money. That is, that services are delivered at the best possible price and can most importantly be seen to add value by advancing the interests of the client.
We believe that further measures are necessary to bring spending within budget and address quality issues. Continued increased expenditure in this area will also lead to legal services in other areas of law being threatened. We work continually to ensure that the most effective and efficient publicly funded legal services are available to clients and we have already introduced a series of measures, including those referred to above. The importance of this work has been heightened by our pressing need to reduce costs and improve value for money. We are therefore proposing to introduce fundamental changes in the way in which we fund immigration and asylum advice.
This will have at its core the client, who will be identified by a unique file number throughout the duration of their case. Each client will be allowed up to a maximum number of hours of legal advice in connection with his or her immigration or asylum case. We also propose there will be maximum limits for disbursements and we have asked the LSC to consult on the appropriate limits.
The proposal will apply to both work conducted under Legal Help, at the stage prior to the initial decision by the Home Office and appeals work under Controlled Legal Representation. The maximum hours or costs limit will attach to the client throughout their case and in the event that the client transfers representative then the new representative will only be funded to provide the remaining balance of the client's allocated hours of legal advice.
We will seek to make the client more aware of his or her rights to and any limits on legal advice through the use of leaflets which will be available in the principal languages and we will require suppliers to ensure that clients are aware of any maximum limits on the publicly funded advice they can receive.
Through the use of the unique file number we will be able to monitor costs of individual cases and also monitor any duplication of work.
To address continuing issues of poor quality advice we also propose to introduce a system of accreditation. Poor quality of advice in immigration and asylum work has been identified not only through LSC auditing and by peer review but has also been recognised by the Law Society. We propose that accreditation will apply to all those providing advice on immigration and asylum matters through public funding. Subject to any transitional provisions then payment out of public funds will only be made to individual advisers who are accredited.
We believe that good quality advice can benefit the client and we wish to continue to develop quality representation in the area of asylum and immigration. We therefore intend to recognise the provision of exceptional, quality advice by the introduction of enhanced fees to those suppliers who offer clients a consistently high level of service and who have obtained advanced levels within the accreditation scheme.
We also hope in the future to introduce a similar system of accreditation for both interpreters and in connection with the instruction of experts so that we can ensure that the client is receiving the best quality advice and assistance in relation to their case.
We have instructed the Legal Services Commission to consult on the detailed contract changes that will be required to bring our proposals into effect.
It is intended that the proposals for maximum costs /time limits will be introduced as from January 2004. We propose that the accreditation scheme will be introduced from January 2004, and will be compulsory from December 2004.
We invite respondents to comment on these proposals by responding to the questions that are set out in this consultation paper. A summary of these questions can be found at the end of the paper.
To introduce a maximum limit for advice under Legal Help
Legal Help is currently available for advice and assistance in immigration and asylum cases up to the initial Home Office decision. This assistance can include briefing the client on the relevant procedures, drafting statements of case, and attending at interviews on the client's behalf.
The LSC estimates that the costs of the advice and assistance element of the budget have risen from £39m in 2000-2001 to £85.7m in 2002-2003. The refusal rate for asylum cases in particular still averaged 66% in 2002 (74% in the first quarter of 2003). The refusal figure is even higher when those who are refused asylum but granted some form of leave to remain are excluded.
Evidence from audits conducted by the Legal Services Commission shows that in a significant number of cases work undertaken at the Legal Help stage does not benefit the client or advance his or her case. There is evidence of attendances at substantive interviews with the Home Office by clerks with little or no experience who often fail to take full and complete notes of the interview. These clerks will rarely intervene in the interview process and are unable to advise clients regarding their cases. We believe that in the majority of cases, attendance by the representative at these interviews is unnecessary, of no benefit to the client and a waste of public funds.
We intend to introduce a maximum number of hours' advice at this initial stage, which will allow the representative to properly brief the client (with an interpreter) on the asylum process and draft a statement on the client's behalf, and in that way advance the client's case.
What is not guaranteed is that within the maximum fee scheme a representative will be able to claim the costs of attending with the client at either a screening or substantive interview.
Asylum
We are proposing that the time allowed for providing initial advice in an asylum case should be limited to a maximum of 5 hours work. We see the key to putting the client's case to be the statement of case prepared on behalf of the client by their representative and setting out the reasons for applying for asylum which is then submitted to the Home Office.
We are also proposing to limit disbursements at this stage. We have asked the LSC to consult on appropriate limits.
Non Asylum
We believe that the need for - and benefits of - legal advice in relation to most non-asylum cases at the initial application stage is limited. Many applications involve form filling rather than the need for expert advice on immigration law.
It is therefore proposed both to limit to 3 hours the number of hours' work in non-asylum cases prior to an initial decision and to also instruct the LSC to publish further guidance and monitor the application of the sufficient benefit test by representatives in these cases.
Exceptions
We recognise that there will be exceptions to any maximum costs scheme. In particular, we propose to allow additional time and costs to cover applications for bail and advice in connection with a client's detention.
Subject to a means and merits test, public funding is available for representation before the Immigration Appellate Authority and the Immigration Appeals Tribunal.
The success rate at the adjudicator stage (including both legally aided and non-legally aided cases) was 22% in 2002, and 17% in the first quarter of 2003.
Evidence from the LSC audit process and peer review suggests that there is over-claiming in appeals work and that suppliers continue to fund unmeritorious cases. The LSC receives complaints from representatives about the conduct of other suppliers whom they believe are providing representation in cases which have no merit and where previous representatives have refused to grant funding.
We therefore propose to introduce a maximum fee for representatives' and interpreters' costs at the adjudicator stage and a separate maximum fee when applying for leave to appeal to the Tribunal. This will apply both to asylum and non-asylum cases.
It is proposed that the maximum fee for preparing an appeal to an adjudicator will equate to 4 hours' costs to prepare the appeal. The necessary time for attending the hearing will also be allowed in addition.
We also propose to set maximum limits for interpreters' costs and disbursements such as medical reports at the appeal stage and again have asked the LSC to consult on the appropriate limits.
It is proposed that the maximum fee for applying for leave to appeal to the Tribunal will be limited to £150.00 (excluding V.A.T).
There will be no maximum fee for substantive Tribunal hearings although the reasonableness of costs incurred at this stage will of course continue to be monitored on audit.
These limits will allow the representative to draft and compile the necessary documentation to prepare the appeal in line with the practice directions set down by the IAA and to attend the hearing on behalf of the client.
In addition, as with Legal Help, we propose to allow additional costs to cover applications for bail and advice in connection with a client's detention.
These arrangements will be reviewed when a single tier of appeal is introduced (as announced by the Prime Minister) but the same principles will be applied under the new system.
We would welcome the respondents' views on the following questions:
1. What impact will focusing advice and representation through the maximum limits have on clients and particular client groups?
2. Are there any other ways in which unnecessary expenditure can be reduced?
3. Do you believe that concentrating funding on the preparation of a statement of case at the initial stage is the most appropriate use of limited funds?
4. Are there specific aspects of appeal work which are not covered in the above proposals?
5. Is there a need to include other exceptions to the maximum limits?
6. What impact will the proposals for maximum limits have on businesses, charities and the voluntary sector?
Introduction of Unique File Number
As we have stated, we see one of the central elements to these proposals to be the introduction of a unique file number that will enable the LSC to better monitor the costs and quality of work undertaken in individual immigration cases.
Although there will be limited and defined circumstances where it will be necessary to transfer adviser, we believe that there is also unnecessary duplication of work which has significantly contributed to the massive acceleration in costs of providing asylum and immigration advice.
We therefore consider it necessary to introduce a scheme by which each client will be identified by means of a Unique File Number which will be used when reporting each case to the Legal Services Commission.
This number will be based on the current Home Office reference number, which is issued to all clients when they make an immigration application.
We have instructed the LSC to consult on the implementation of the Unique File Number. :
Accreditation
The quality of legal advice in the area of immigration and asylum has long been of concern to the Government. The Legal Services Commission's audits regularly reveal instances of over-claiming for work that adds little or nothing to the client's case and, on occasions, may actually prejudice it. Immigration Adjudicators and High Court Judges comment on the poor performance of legal representatives appearing before them. Indeed, The Law Society itself, the body responsible for regulating solicitors, recognises that there is a shortage of good quality immigration and asylum solicitors and is taking steps to improve the standard of service amongst them.
The Government has already sought to improve quality through the setting up of the Office of the Immigration Services Commissioner (OISC) and, in the publicly funded sector, through the introduction of contracting in January 2000, as well as the increased use of audits and peer review. The Law Society has also set up Panels to improve and promote quality in this field, although membership remains very low.
However we believe that the problem is so widespread that these measures alone will not improve quickly enough the service to clients. We are also concerned that when firms giving poor advice are identified and have their contracts terminated, the fee earners actually responsible for giving this poor advice may simply transfer to another contracted firm and continue to advise vulnerable people.
We are proposing to set up an accreditation scheme specifically for those in publicly funded work and would seek to build on existing schemes. The LSC will be consulting on the details, and will work closely with The Law Society and the OISC to ensure that appropriate standards are set. Individuals performing publicly funded immigration or asylum work would only be permitted to undertake activities according to the level of accreditation they have reached.
We propose that the accreditation system will have four levels:
Probationer - any individual wishing to perform any immigration work under an LSC contract will need to be registered at this level as a minimum.
Accredited Fee Earner - Probationers will need to pass the Accredited Fee Earner assessment within 12 months.
Supervisor/Senior Fee Earner - at least 1 person at each firm will need to reach this level in order for a supplier to meet the LSC's Specialist Quality Mark Standard.
Advanced - This level will be for those individuals who show they have special expertise and experience.
We propose that work by those on the advanced level will attract increased remuneration.
We consider that the accreditation scheme should be independently assessed and will be inviting The Law Society to administer the scheme. We propose that the LSC will pay the costs of accreditation.
We have asked the Legal Services Commission to consult with all relevant bodies on the detailed application of the accreditation scheme however we would welcome comments on the following questions:
7. Do you believe a separate system of accreditation is appropriate for immigration/asylum work?
8. What impact will the proposed accreditation scheme have on clients and particular client groups?
9. What impact will the proposed accreditation scheme have on businesses, charities and the voluntary sector?
10. Are four levels of accreditation necessary? If not, how many, and what should they be?
11. What work do you believe those at each level should be considered competent to perform?
12. How should competence be assessed and by whom?
13. How soon do you believe accreditation can become compulsory?
14. Are there other ways in which quality can be ensured?
We would welcome responses to the following questions set out in this consultation paper:
What impact will focusing advice and representation through the maximum limits have on clients and particular client groups?
Are there any other ways in which unnecessary expenditure can be reduced?
Do you believe that concentrating funding on the preparation of a statement of case at the initial stage is the most appropriate use of limited funds?
Are there specific aspects of appeal work which are not covered in the above proposals?
Is there a need to include other exceptions to the maximum limits?
What impact will the proposals for maximum limits have on businesses, charities and the voluntary sector?
Do you believe a separate system of accreditation is appropriate for immigration/asylum work?
What impact will the proposed accreditation scheme have on clients and particular client groups?
What impact will the proposed accreditation scheme have on businesses, charities and the voluntary sector?
Are four levels of accreditation necessary? If not, how many, and what should they be?
What work do you believe those at each level should be considered competent to perform?
How should competence be assessed and by whom?
How soon do you believe accreditation can become compulsory?
Are there other ways in which quality can be ensured?
Name:
Organisation:
Address:
If you are a representative group please give a summary of the people and organisations you represent
Please send your completed response to:
Mr Muhammud Islam
Lord Chancellor's Department
Public Legal Services Division
3rd Floor
Selborne House
54-60 Victoria Street
London SW1E 6QW
Tel: 0207 210 8762
Fax: 0207 210 8780
Email: Muhammud Islam
If you have any complaints or comments about the consultation process, you should contact the Lord Chancellor's Department's consultation co-ordinator, Laurence Fiddler, on 020 7210 8516 or email him at Laurence Fiddler. Alternatively, you may wish to write to the address below:
Laurence Fiddler
Consultation Co-ordinator,
Room 8.23
Lord Chancellor's Department
Selborne House
54-60 Victoria Street
London SW1E 6QW
The criteria in the Code of Practice on Written Consultation issued by the Cabinet Office is as follows:
Timing of consultation should be built into the planning process for a policy or service from the start, so that it has the best prospect of improving the proposals concerned, and so that sufficient time is left for it at each stage.
It should be clear who is being consulted, about what questions, in what timescale and for what purpose.
A consultation document should be as simple and concise as possible. It should include a summary, in two pages at most, of the main questions it seeks views on. It should make it as easy as possible for readers to respond, make contact or complain.
Documents should be made widely available, with the fullest use of electronic means (though not to the exclusion of others), and effectively drawn to the attention of all interested groups and individuals.
Sufficient time should be allowed for considered responses from all groups with an interest. Twelve weeks should be the standard minimum period for a consultation.
Responses should be carefully and open-mindedly analysed, and the results made widely available, with an account of the views expressed, and reasons for decisions finally taken.
Departments should monitor and evaluate consultations, designating a consultation co-ordinator who will ensure the lessons are disseminated.