Social Welfare Law

Lord Low of Dalston Excerpts

Tuesday 25th February 2014 Lords Chamber

Asked by

[Lord Low of Dalston]

To ask Her Majesty’s Government what is their response to Tackling the Advice Deficit, the report of the Low Commission on the future of advice and legal support on social welfare law in England and Wales.

[Lord Low of Dalston (CB)]

My Lords, I am very pleased to have this opportunity of introducing the report of the commission, which I was honoured to be asked to chair, on the future of advice and legal support on social welfare law in England and Wales. I am grateful to all those who have put their names down to speak—it is quality more than quantity tonight. I am particularly honoured that the right reverend Prelate the Bishop of Peterborough should have chosen to make his maiden speech in this debate and I am sure that we are all looking forward to what he has to say with eager anticipation. I am also looking forward to hearing what the Minister has to say with eager anticipation. I must place on record my appreciation of the contribution of my fellow commissioners and our hard-working secretary and researcher, Richard Gutch and Sara Ogilvie, for this was truly a team effort and we had a brilliant team.

As part of the Government’s austerity measures, there have been significant reductions, estimated by the Government to save £89 million a year, in the scope of legal aid for issues of social welfare law. These are for things such as benefit debt, employment, immigration, education and many aspects of housing. This is compounded by reductions in local government funding for advice and legal support, which are likely to amount to at least a further £40 million by 2015. Some local authorities are cutting virtually all not-for-profit provision in response to the cuts in funding from central government approaching 40% by 2016.

Services are closing or retrenching on a significant scale, yet the demand for advice and legal support has never been greater and can only grow further as the Government’s welfare reforms are rolled out. I could tell your Lordships harrowing tales of the serious consequences for the advice sector, and therefore for individuals needing support, of the almost complete removal from scope of welfare benefits advice. However, partly because of time and the need for brutal summary, I prefer to concentrate in a more dispassionate way on what we are suggesting to address the problem. I do not think that anyone doubts that the austerity measures, however necessary, have left us with a real problem.

We were under pressure to recommend simple reinstatement of the cuts from two quarters: from lawyers, of course, who thought that our recommendations focused too much on the front end of the legal journey and insufficiently recognised the importance of legal interventions for resolving social welfare problems; and from those who resist any change in patterns of funding for public services, such as the introduction of the market. However, in a situation where we have to accept that there will be less money for legal help and representation, we were anxious to develop a fresh approach which, through measures to reduce the need for advice and legal support in the first place, developing more cost-effective approaches to service provision and drawing on a wider range of funding sources than hitherto, ensured that people could still meet a lot of their needs through a greater emphasis on information and advice, while ensuring that there is at least some money available for legal help and representation.

Rather than recommending simple reinstatement, we preferred to think in terms of a continuum of provision including public legal education, informal and formal information and general advice—often provided by local authorities—specialist advice, legal help and legal representation. We took the view that it was important to tackle the whole of this continuum in an integrated fashion and that legal aid should be seen as just one part of it, not in isolation as a stand-alone funding mechanism. We do not underestimate the importance of legal interventions for solving people’s problems. Sometimes it takes a lawyer to bring a recalcitrant defendant to the table. However, with cuts of the order of £100 million a year in legal aid, it seemed clear to us that the advice end of the spectrum was going to need to take more of the strain. The more we can do at the beginning of the process, we reckoned, the less we may need to do at the end. However, we are absolutely clear that there needs to be provision for legal help and representation at the legal end of the spectrum.

Of course, the advice sector is not beyond improvement. There is a general perception that it is too fragmented and could benefit from rationalisation from closer working together and a greater spirit of collaboration. We would also like to see the national umbrella bodies, such as Citizens Advice and AdviceUK, working more closely together and sharing their resources and experience more widely. AdviceUK told us about a system in Portsmouth based on what it calls “systems thinking”. It moved from a system that involved waiting for two hours, seeing a volunteer for 20 minutes then making an appointment to see a specialist—altogether potentially involving 13 steps before seeing an adviser who would help you—to a system that dispensed with triage or rationing, put specialist staff in the front line, with expertise in one area but able to pull in others as necessary rather than simply referring on, enabling you to see someone within 20 minutes. It has shown that approaches such as this can achieve savings of at least 30% and sometimes, as in its work in Nottingham, as much as 95%. Although it may seem like a Rolls-Royce service it can end up costing less in the long run.

Our report contains 100 recommendations but the six most important are: first, that public legal education should be given higher priority, both in school alongside financial literacy and in education for life, so that people know their rights and where to go for help. Secondly, though there are certainly factors making for increased demand in the welfare reforms and other austerity measures, we are convinced there are also ways of reducing the need for advice and legal support in the first place. For example, the DWP could be incentivised to get more decisions right first time by being required to pay costs on upheld appeals. Thirdly, we suggest ways in which courts and tribunals could be made to work more efficiently. Fourthly, the next UK and Welsh Governments should develop national strategies for advice and legal support, preferably with all-party support and there should be a Minister with responsibility for advice and legal support within the MoJ with a cross-departmental brief for leading the development of the strategy. Fifthly, local authorities or groups of local authorities should coproduce or commission local advice and legal support plans with the local not-for-profit sector and commercial advice agencies. Sixthly, we estimate that a further £100 million a year is required to ensure a basic level of provision of information, advice and legal support on social welfare law.

We are calling on the next UK Government to provide half of this by establishing a 10-year—to enable long-term planning—national advice and legal support fund for England and Wales of £50 million a year to be administered by the Big Lottery Fund. We aim to spread the load so that no part of government is asked to bear too great a burden. We therefore propose that the fund should be financed by the MoJ, the Cabinet Office and the DWP, as the main creator of the need for advice and legal support. Ninety per cent of the fund should be used to fund local provision in line with local plans, with 10% for national initiatives. The Big Lottery Fund should allocate the 90% share of the national fund to local authority areas, based on indicators of need using joint strategic needs assessments and health and well-being strategies. We have also identified other national and local statutory, voluntary and commercial sources of funding that we believe could contribute an additional £50 million a year to match the national fund.

Greater use needs to be made of new technology for the section of the population that is increasingly digitally literate. This will free up resources to enable more face-to-face, in-depth and intensive support to be targeted at those most in need. In addition to the current range of specialist lines, there should be a one-stop national helpline providing a comprehensive advice service to the general public and able to act as a safety net for those who have nowhere else to go.

Although I said that we were not arguing for a simple restoration of the cuts, that does not mean that we would not like to see any of them reversed. We would like to see funding reinstated for housing cases, for instance, so that people can get help before they reach crisis point and face imminent eviction. The scheme for the funding of exceptional cases under Section 10 of the LASPO Act needs to be reviewed, because as things stand it is just not working. This was intended to act as a safety net for funding cases that would now be out of scope of legal aid but where either human rights or EU law required the provision of legal aid. During the passage of the LASPO Act, it was estimated that there would be between 5,000 and 7,000 of these cases a year, but a Parliamentary Answer on 11 February this year stated that the total number of applications so far was only 1,030, of which only 31 had been granted.

In summary, our strategy is to suggest ways of reducing preventable demand, simplifying the system and enabling it to work better, putting more weight on the advice end of the spectrum and suggesting ways in which it could work more efficiently. We believe that by investing in a wider range of information and advice, with some legal help and representation, many of the undesirable consequences of the LASPO Act can be avoided and we will actually end up saving money. I hope very much that the Minister will find not only that there are things in our report with which he can agree but that it makes a useful contribution to the stabilisation and rehabilitation of our system of advice and legal support on social welfare law.