§ The Parliamentary Under-Secretary of State for Constitutional Affairs (Mr. David Lammy)
Asylum legal aid costs have risen from £81.3 million in 2000£01 to £174.2 million in 2002–03. There are a number of reasons for this increase, but it remains the case that the majority of claims for asylum are refused. As we set out in our Consultation Paper of 5 June 2003, this increase in costs, coupled with concerns about the quality of some work undertaken under legal aid, and evidence of duplication of some cases, requires action from the Government to ensure that taxpayers' money is spent most effectively and efficiently.
Following the consultation, the Government will introduce measures which will:introduce a financial threshold of 5 hours for the initial decision-making process, which can only be exceeded with prior authority of the LSC;ensure that no legal aid work is undertaken in asylum appeal cases without prior approval from the Legal Services Commission, which will set financial thresholds in individual cases which pass a merits test for legal aid;introduce accreditation for all lawyers and case-workers doing legally aided asylum work;introduce a Unique Client Number to reduce unnecessary changes of solicitor.
The LSC will have the power to vary the financial threshold up or down for individual firms whose track record justifies this. The LSC will also continue to allow top quality firms with a good track record on appeal 35WS cases to proceed without prior authority up to a set financial threshold. Any autonomy granted by the LSC will have to be earned.
These measures will apply in England and Wales.
We outlined three proposals:a curb on the amount of time for which lawyers would be paid in individual cases;accreditation of lawyers and other case-workers to ensure quality representation;the introduction of a Unique Client Number to prevent unnecessary changes of solicitor.
We received 260 responses to the Consultation Paper. The House of Commons Constitutional Affairs Committee also inquired into our proposals and reported on 31 October 2003.
There was overwhelming support for the introduction of accreditation and the Unique File Number. There was widespread concern about the proposals to curb the amount of time for which lawyers would be paid in individual cases. Respondents also made many suggestions about where savings might be achieved and there was some criticism of Home Office systems and procedures. Officials from the Home Office, Department for Constitutional Affairs and Legal Services Commission are examining the initial decision-making stage of the asylum process, with particular regard to the role that legal aid and publicly funded practitioners play. This work may lead to further changes in the way that legal aid for asylum seekers is delivered beyond those now proposed. In particular, consideration is being given as to whether legal aid is needed at the initial stage in all cases. The Government will make a further announcement on any further changes in due course. We are very grateful for all the responses, and especially the report of the Constitutional Affairs Committee. We have considered carefully all the points which have been made.
OUR REVISED PROPOSALS
In our consultation paper, we proposed that there should be a cap of 5 hours' work at the initial stage, that is prior to the initial decision by the Home Office as to whether asylum should be granted. There would be higher caps for stated exceptions. We now propose that there should instead be a financial threshold for preparation time allowed for the generality of cases up to the initial decision for asylum cases. The norm for this threshold will be 5 hours. The LSC will also introduce a threshold for immigration non-asylum cases. This will normally be between 3 and 5 hours depending on the circumstances of the case. Once this threshold is reached, suppliers will only be allowed to proceed under legal aid with prior authority from the LSC. Professional disbursements and VAT will not count towards these thresholds. The LSC will introduce separate thresholds for professional disbursements which require prior authority to exceed. Extensions are only likely to be granted, on application to the LSC, in genuine and complex cases where there is a real prospect of success. The LSC propose to allow a limited number of firms, where it is confident work is to a high standard, devolved powers to self-grant to a higher figure.36WS
In all but exceptional cases (unaccompanied minors; applicants going through fast-track initial decision processes; those suffering from a recognised and verifiable mental incapacity which makes it impractical to undergo an interview without support) funding for attendance by a representative at the substantive asylum interview will not be authorised. The LSC will introduce rules to ensure that in these exceptional cases where attendance at interview is authorised, this will be by the advisor in the case or the immigration supervisor, not by an agent or outdoor clerk, until accreditation is introduced.
Before any preparatory work can be carried out under legal aid for an asylum appeal, the LSC will need to be satisfied itself that the case merits being pursued. Currently, this decision can be made by individual firms. There will therefore be no guarantee of any legally aided work being allowed at the appeals stage in individual cases. If, however, the LSC is satisfied that the appeal case merits representation, it will set a financial threshold up to which firms will be able to work before they need to seek an extension from the LSC. Thresholds would be set for individual cases depending on the facts of the case, and the experience and previous outcomes of the firm. As now, applicants will be able to seek a review of refusal of funding by the LSC for an appeal against rejection of their asylum claim, but any such review will be considered on the papers only.
The LSC will proceed with a fixed fee of £150 plus VAT for applications for leave to appeal to the Immigration Appeal Tribunal.
The LSC is presently finalising the details of the skills and competencies required for each of three levels of accreditation now being proposed. It will then invite the Law Society to recruit independent assessment organisations which will ensure that all advisers undergo objective tests of their competence and evaluation of a portfolio of work conducted. As set out in our original proposals, those on the most rigorous advanced level will be entitled to increased remuneration as a result of their skill and experience for work they personally conduct. This we propose to be at 5 per cent. above current rates.
The Unique Client Number will be required to be used for all dealings between advisers and the LSC in a case once it has been issued, and will be submitted with all claims for payment once an initial decision has been made.
In addition, the LSC will also consult over limiting choice of representative in locations where fast-track procedures are in operation to dedicated duty representatives authorised under contract. This is intended to prevent touting and poaching of clients at centres such as Oakington and Harmondsworth which currently leads to wasteful duplication of resources. The LSC will also consult over the use of experts in asylum cases, whether it is necessary to have a separate interpreter at substantive asylum interviews for the client, in those exceptional cases where funding is authorised for attendance by a representative at the substantive asylum interview and whether there should be a fixed fee for advocacy before the adjudicators in order to ensure value for money is obtained.37WS
The introduction of prior authorisation by the LSC in every asylum and immigration case (with the exception of 5 hours for advice at the initial stage and any other earned autonomy granted by the LSC) will require a significant change in processes and procedure which will take some time to bed in efficiently. There will therefore be a transitional additional 2 hours at the initial stage for most firms before extensions are required from the LSC. The timetable will be as follows:Transitional 7 hour threshold for initial stage applies to suppliers in London on 1 March 2004.Transitional 7 hour threshold for initial stage applies to all other suppliers on 1 April 2004.5 hour threshold for initial stage applies to all suppliers in England and Wales on I May 2004.Authorisation from LSC required for appeals from 1 April 2004.The thresholds will apply to all work whether done on new or old cases started after introduction.
Accreditation will be introduced from April 2004, and will become compulsory by April 2005. The Unique Client Number will be introduced from April 2004. The requirement to apply to the LSC for prior approval to appeal an initial Home Office decision will also apply from April 2004.
These revised proposals are estimated to save around £30 million in 2004-05 against what we would be spending were we not to introduce prior authorisation.
Taken together, these measures will bring asylum legal aid under effective control and cut out unnecessary expenditure. Costs will be limited, and targeted at the most deserving cases. Quality representation will be recognised and rewarded by the new accreditation scheme, and wasteful duplication of cases will be ended.