Scottish Government

Chapter 4: A Framework for Change

The consultation stated:

We believe that the variety of service provision and its resulting flexibility are potentially a great strength of civil PFLA in Scotland, provided that a system for planning and co-ordination can be developed, covering the full range of provision in order to improve accessibility, quality and value for money. To underpin such a new planning framework we propose to develop and implement an overarching quality system for all forms of civil PFLA.

There are three parties which can and should be responsible for and contribute to the development and operation of a national and local framework for the planning of civil PFLA. These are the Scottish Executive; local authorities; and, in the longer term, a national co-ordinating body. These three parties, in delivering such a framework, should work with other funders and providers of legal advice services, including the voluntary sector organisations and the legal profession.

The Scottish Executive has two overall roles to play in the planning and co-ordination of civil PFLA:

• Firstly, setting and articulating strategic policy direction on principles and priorities for the delivery of PFLA; and
• Secondly, the active co-ordination of the various strands of activity and policy initiatives involving (legal) advice provision, which may originate either from one or more portfolios within the Executive of from other UK Government departments.

Local authorities are significant existing providers of advice services. They are also significant funders of provision of services by the voluntary sector. Each local authority is therefore better placed than any other organisation or body to take on the function of planning and ensuring appropriate local civil PFLA provision in its area, taking account wherever possible of PFLA provided by solicitors. Three strategies might be possible to ensure commitment to the provision of advice services and their planning and co-ordination, and to create appropriate consistency in service provision across local authorities.

The first would be to bring all funds currently being spent by local authorities on funding or directly providing advice services under central control, to ensure the implementation of centrally drawn up plans for local service delivery.

A second possibility would be to place a statutory duty on local authorities to ensure the planning and the provision of civil PFLA in their area. Such a duty would seek to ensure consistency of provision and protect PFLA from financial pressures on local government spending.

The third possible strategy would be a consensual approach to improving and developing PFLA based on close co-operation between local government, the Scottish Executive and a national co-ordinating body in order that the shared aims of promoting the resolution of justiciable problems and promoting social inclusion can be achieved. This approach would seek to allow local authorities flexibility in delivering national policy priorities at a local level.

We are not inclined to favour either the first or the second option. A high degree of central control is inappropriate for service delivery at local level. Our preferred policy is therefore strongly supportive of the idea that all the relevant interests should adopt a consensual and cooperative approach.

4.1 The consultation asked:

Q1: For the short-to-medium term, do you agree with the proposed consensual approach to developing better planning and co-ordination of advice services by Local Authorities, without any formal duty on Local Authorities in respect of the provision of PFLA services in their area?

In total, 46 respondents (71%) expressed clearly their support or otherwise for the consensual approach favoured in the consultation document. A further 4 respondents provided commentary of relevance but did not indicate a clear preference. Table 2 provides a summary of views.

Table 2: Summary of views on whether respondents agreed with the proposed consensual approach to developing better planning and co-ordination of advice services by local authorities

NB. Percentages may not total 100% exactly due to rounding

Of those who expressed a clear view, a slight majority (57%) was in agreement with the consensual approach to developing better planning and co-ordination of advice services by local authorities. This majority masks differences between sectors, however, with the vast majority (83%) of local authority respondents supporting this approach, compared with just under half (47%) of other respondents expressing clear support for this proposition.

4.1.1 Comments Supporting Option 3: Consensual Approach

Several respondents provided comments to support their agreement with the consensual approach proposed. Many considered that this would provide the flexibility for national priorities to be interpreted and applied at a local level by those with local knowledge ( LA, Oth). Others stressed that local authorities had an important role to play in planning (Vol, LA), were well placed to make this approach work (Vol, Indiv), and could bring their relevant experience of community planning to the task ( LA).

Others, however, whilst supporting the consensual approach, suggested that contingency plans might be sensible. For example, a common suggestion was for the approach to be reviewed over time with the option available to place a statutory duty on local authorities should this be deemed necessary in the future (Oth, Indiv, LA, Leg). Another suggestion was for the consensual approach to be supported by safeguards such as the requirement that where legislative changes generate a new need for advice, local authorities should have to make this advice available (Vol). One respondent emphasised that any consensual approach should conform with existing relevant statutory obligations such as the Race Relations Act 1976 (as amended) (Vol).

A small minority of respondents supported the consensual approach but only if certain aspects of the necessary planning were backed up by a statutory duty, eg. the need to draw up local plans (Vol), or to engage with the partnership process (Vol). One respondent cautioned:

" If there is no duty upon a local authority to produce a plan, there is the distinct risk that it may engage in dialogue only, without producing any substantive document, which service users could refer to, or use to hold the authority to account" (Vol)

4.1.2 Comments Against Option 3: Consensual Approach

A small number of consultees outlined specific arguments against the proposed consensual approach to developing better planning and co-ordination of advice services by local authorities. For some, there was concern that this model may not accommodate the specialised nature of the advice with which they were associated, such as personal injury (Leg) or immigration (Oth). Others focused on practical issues of what they saw as the lack of commitment to investing additional funds to support the consensual approach (Vol), or the lack of detail on how the approach might operate:

"… sounds fine because it (the consultation document) talks in very general terms about co-operative effort by three bodies, but it is actually little more than a collection of stock phrases which is barren of any substantial indication of how this might actually be done" (Leg)

4.1.3 Comments Supporting Option 2: Statutory Duty

Amongst those respondents who saw strengths in placing a statutory duty on local authorities to ensure the planning and the provision of civil PFLA in their area, many supported their view with commentary. The most common reason given by consultees in favour of imposing a statutory duty was to ensure a comprehensive coverage of services over different geographical areas and different (sometimes specialist) topics on which advice was sought. A typical remark was:

" In the absence of a statutory duty, practice is likely to vary greatly between local authority areas, leading to some areas receiving much better services than others" (Leg)

Another common theme was that the statutory duty would go some way to addressing any possible conflict of interest which may arise, for example where local authorities may wish to favour in-house services over independent voluntary sector services, or wish to focus on areas in which they have most involvement such as housing, and downgrade other areas, or be tempted to place less emphasis on the provision of services which could be used to challenge them directly.

Several respondents argued that as local authorities were essentially political bodies with competing funding requirements and various statutory duties, a new statutory duty to ensure planning and provision of civil PFLA would be essential to retain the priority of PFLA over other services (Vol). A related argument was that if a statutory duty was not applied, people in Scotland would not necessarily have access to the appropriate legal advice to which they were entitled (Leg).

Other consultees voiced a range of reasons as to why they thought that a statutory duty was necessary. These included:

• To prevent some bodies refusing to participate in planning (Vol)
• As there does not appear to be any evidence to suggest that any other option could work (Vol)
• To ensure an appropriate balance of power in any relevant planning networks (Vol)
• As local authorities are increasingly significant parties in litigation (Indiv)

One respondent suggested that a compromise position might be for a consensual approach to operate, supported by the ring-fencing of funds set aside for advice services (Vol).

4.1.4 Comments Against Option 2: Statutory Duty

Only one consultee argued specifically against Option 2, stating that a statutory duty might take away the flexibility required to accommodate regional differences ( LA).

4.1.5 Comments Relating to Option 1: Central Control

Very few comments related to Option 1. Only one substantive argument was made against this Option: that it would not allow for regional variations in operation ( LA).

4.2 The consultation asked:

Q2: What support activity do you believe would need to be provided to assist local authorities in developing their planning and co-ordination of PFLA at a local level? Who should provide this?

Overall, 44 respondents (68%) addressed this topic. Views were expressed on the types of issues on which guidance to local authorities would be welcome, the processes of providing support activity to local authorities, and the bodies deemed best placed to be involved in these processes. One overarching comment was that any support should be on-going and responsive to the ever changing needs and profiles of local areas (Vol).

4.2.1 Issues on Which Guidance and Support Required

A wide range of topics was identified by respondents as candidates to include in guidance and support to local authorities in their planning and co-ordination of PFLA at local level. Most commonly cited topics were:

• Guidance on how to map unmet need and current provision
• Information on useful toolkits, templates and established systems for assessing need
• Articulation of a national policy framework for PFLA
• Articulation of an agreed quality framework for local service provision
• Provision of examples of good practice

Less frequently cited topics were:

• Help with "tricky" areas at the interface between different bodies at local level
• Co-ordination and development of information technology systems used by different bodies
• Financial support for the planning and co-ordination processes
• Access to existing mapping information, relevant research and data
• Guidance on how best to consult with user groups eg those with learning disabilities
• Benchmark guidance on acceptable levels of commitment by partner organisations
• Definitions and clarification of meanings of "advice" and fundamental principles and standards

4.2.2 Who Should Provide Support Activity?

A common response was that the Scottish Executive should provide much of the support activity required, at least in the short term. In particular, consultees envisaged the Executive articulating a national policy framework, providing advice on best practice and clarifying roles, terms and understandings. In the longer term, many respondents considered that a new national co-ordinating body should be tasked with providing such support, which could include monitoring the adherence to a national set of aims, policies and standards. One suggestion was for any national body to employ Development Officers to evaluate current local advice provision by the "not for profit sector", to identify existing legal aid provision and to direct local authority provision (eg Welfare Rights Officers) (Leg).

Other bodies were cited as potentially valuable in providing support activity. Most commonly identified were:

• Service providers in the voluntary, community and private sectors
• Service users, including people with disabilities, and older people, via, for example, consultative forums

A few respondents argued that COSLA was well placed to provide support. One view was that COSLA should be involved in "proofing" any guidance issued by the Scottish Executive, in case it did not, " reflect the operational and financial environments in which advice and publicly funded legal services currently operate" ( LA). Another suggestion was that COSLA's existing sharing and support networks could be utilised to provide the support needed by local authorities in planning and co-ordinating advice services in their area (Oth). Others agreed that local authorities should be given opportunities to share good practice with each other (Oth, LA, Vol). One suggestion was for a national forum to be established for the purposes of stakeholders exchanging information on local service planning (Vol).

A small minority of consultees emphasised the role of SLAB in providing support particularly in terms of linking local authority and voluntary services with private sector provision (Oth, LA, Leg). Other sources of support suggested by respondents included local bar associations (Leg), dedicated working groups ( LA, Indiv), dedicated staff employed by local authorities (eg secondees from SLAB or the Scottish Executive) (Vol), Scottish Executive Ministers (Vol), support from elected members and senior officials in each local authority (Vol), members of sheriffs associations, local solicitor associations, Citizens Advice Bureaux (Indiv) and Audit Scotland (Leg).

One proposal was for lay members of the community (eg from community groups, tenant associations, representatives of trade unions) to be involved in supporting local authorities (Leg). Another was for the Commission for Racial Equality and other specialist organisations to provide support via training, as appropriate, for the local authority staff involved (Vol). Finally, one view was that the existing experience to emerge from Best Value and Community Planning should be harnessed and applied to the planning and co-ordination of PFLA (Leg).

The consultation stated:

To ensure greater planning and co-ordination of civil PFLA provision, we firmly believe that in the longer term there is a need for a national body with responsibility proactively to plan, co-ordinate, support and develop civil PFLA in all its forms.

At present there is no such body in Scotland. SLAB has a narrower remit, the essence of which is to administer the operation of legal aid in Scotland, to advise Scottish Ministers on policy on the operation and development of legal aid provision, and to maintain and develop systems and support functions for the effective operation of the legal aid system. Those functions will continue to be necessary, but they need to be set in a wider context. Given this, we would envisage that a new body would take over the role currently performed by SLAB, but with additional powers and a wider remit.

4.3 The consultation asked:

Q3: For the longer term, should a national body with a planning and co-ordination responsibility for the delivery of civil PFLA be established in Scotland?

Overall, 45 respondents (69%) expressed a clear view on the proposal to establish a new national body with a further 3 respondents providing further commentary of relevance to this question. Table 3 summarises their views.

Table 3: Summary of views on whether a national body with a planning and co-ordination responsibility for the delivery of PFLA should be established in Scotland

NB. Percentages may not total 100% exactly due to rounding

Three-quarters (76%) of those who provided a view were in favour of the establishment of a new national body with a planning and co-ordination responsibility for the delivery of PFLA in Scotland. A minority (13%) of respondents did not think that such a body should be established, with a further 11% undecided on the best way forward with regards to a new body. There were no significant differences between the views of different categories of respondent on this matter.

4.3.1 Views of those in Favour of New National Body

The most common reason given in favour of establishing a new body was that this would promote consistency of approach to provision and access to legal aid across Scotland.

A typical comment was:

" Proper national planning and co-ordination of this work should mean that advice services are provided on a consistent basis across Scotland and avoid the current position where 'advice deserts' can arise in terms of geography and subject matter" (Vol)

Those respondents representing particular groups supported the notion of a new body because of the potential they envisaged for its addressing, on a national basis, the needs of their particular sector. For example, it was commented that without a national body the delivery of PFLA in relation to race equality will continue to be fragmented and inconsistent (Vol).

Other respondents identified what they considered would be further benefits of a new national body to plan and co-ordinate PFLA. They thought that it would:

• Set out a more clearly defined role for local authorities, giving clear direction and vision;
• Avoid duplication of work across Scotland;
• Provide more co-ordination at national level;
• Develop acceptable standards and quality across the country;
• Provide value for money;
• Go beyond the current limited role of SLAB;
• Provide guidance on best practice;
• Introduce an element of fairness;
• Safeguard the future funding of PFLA.

A recurring theme was that to avoid simply becoming another layer of bureaucracy, the new body should have a clearly defined remit and be independent from the Scottish Executive. Another common theme was the new body should be established with a wide representation of stakeholders including public involvement and service providers on its Board.

Finally there were calls for the body to be introduced sooner rather than later ( LA), and its establishment to be accompanied by a re-defining of the role of SLAB (Leg).

4.3.2 Views of those Against a New National Body

Two recurring themes were that a new national body would be costly to set up and run (Leg) and would add another layer of bureaucracy without any clear benefit (Leg). One comment was that yet another national body was not desirable ( LA). Others considered that a new body might detract from the role of SLAB (Indiv) or duplicate SLAB's work (Leg). Finally, one respondent suggested that such a body might be prone to "macro-political" considerations and change with the Government of the day (Indiv).

4.3.3 Other Comments

Amongst those who were undecided about the proposed new national body, a few suggested that perhaps SLAB could accommodate new powers within its current structure, rather than creating an entirely new body from scratch (Vol). Another respondent made a similar suggestion that a "softer" approach may be more appropriate with the remit of SLAB extended to provide the overseer role and incorporate national development of strategy ( LA). One consultee stated simply that they were unclear as to how the proposal would work in terms of what they could see as possible overlaps with other established and future bodies dealing with Trading Standards.

4.4 The consultation asked:

Q4: What are your views on the suggested functions for a national co-ordinating body for civil PFLA (national planning and co-ordination; national development and research; responsibility to ensure provision of services where necessary, including second tier services such as training and information)?

Forty-two respondents (65%) provided a view on the suggested functions for a national co-ordinating body for civil PFLA. The most common response (71% of respondents) was to agree with the functions proposed: national planning and co-ordination; national development and research; and responsibility to ensure provision of services where necessary, including second tier services such as training and information.

Some of those who supported the proposals made specific mention of one particular function which they considered to be especially welcome. Highlighted amongst these was the responsibility to ensure provision of services which was viewed as helpful in the context of specialist services (Oth), and those services which cannot be provided practically or economically within one local authority boundary ( LA). Also praised were the proposed planning and co-ordination function (Indiv) and the second tier service provision (Leg). One consultee commented that the suggested research role for the new body would be " novel and timely" (Indiv). Another stressed that the educational remit should encompass increasing the skills of individuals to empower them to resolve their own problems (Vol).

4.4.1 Additional Functions for the National Co-Ordinating Body

Many respondents suggested additional roles which they proposed would be appropriate for the new body to take on. These included:

• Standard setting and overseeing standards (Oth, Indiv, Vol)
• Oversight of work done by specialist advice services (Vol)
• Providing public legal education ( LA, Leg, Indiv)
• Provision of appropriate services to people with learning disabilities (Vol)
• Ensuring compliance of working with other legal frameworks such as the Disability Discrimination Act 2005 (Vol)
• Ensuring the system can be responsive to sudden upsurges in demand whilst making sure any spare capacity does not lead to an unnecessary waste of public funds (Oth)
• Tackling the decline in numbers of people who work in the field (Leg)
• Identifying trends in occurrence of particular legal problems and pursuing change to prevent their occurrence in the first place - a preventative role (Leg)
• Exploring, developing and supporting the use of technology in the delivery of advice (Leg)
• Promoting genuine partnership working ( LA)
• Employing salaried service providers (Indiv)

4.4.2 Views Against Proposed Functions for the National Co-Ordinating Body

A few contrasting views were expressed by consultees. Three argued that such a body was not needed or wanted and so the proposed functions were irrelevant (Leg). One view was that a different approach would be to emphasise the availability of additional insurance schemes accessible through employment and other outlets such as home insurance which could provide cover for people needing legal advice. It was suggested that the development of a new national co-ordinating body may constrain the development of some of these alternative services and products (Leg).

Anther view was that the training function may not be appropriate for the new body as, according to one consultee, this role was already adequately carried out within the profession ( LA).

4.4.3 Other Comments

Several respondents accompanied their response on the proposed functions with related comments.

It was stressed that the establishment of the new body should be underpinned by appropriate funding to enable it to fulfil its tasks (Vol). One respondent urged that the functions be reviewed at regular intervals (Leg), with two others stressing the importance they thought should be placed on enabling greater stakeholder participation and involvement in the establishment and working of the new body (Leg).

One view was that if the new body was to emerge from a re-worked SLAB model, then there would need to be a substantial culture change from a reactive stance to a proactive organisation (Vol). The new body should recognise and understand local differences ( LA) and should encourage relevant community-based research (Leg). According to one consultee, local authority input would be valuable at an early stage ( LA), with another stressing that at a macro level the new body should aim to work in tandem with other national agencies bearing in mind the reserved nature of many current civil consumer advice frameworks ( LA). It was suggested that it may be useful to establish Service Level Agreements between the new body and other authorities (Leg).

Finally, one consultee considered that the new body might wish to start by clarifying what is meant by the civil justice system before moving forward the provision of any training and information (Leg).

4.5 The consultation asked:

Q5: Should a national co-ordinating body be able to fund provision by non-legally qualified providers as well as solicitors and advocates?

Forty seven (72%) respondents addressed this question with 45 providing a clear response and a further 2 providing commentary only. Table 4 provides a summary of views.

Table 4: Summary of views on whether a national co-ordinating body should be able to fund provision by non-legally qualified providers

NB. Percentages may not total 100% exactly due to rounding

Of those who provided a view, the vast majority (89%) was in favour of the national co-ordinating body funding provision by non-legally qualified providers as well as solicitors and advocates.

4.5.1 Reasons in Favour of Funding Non-Legally Qualified Providers

A common theme was that being able to direct people to the most appropriate advice provider who could offer a quality advice service was more important than issues of whether or not the provider was legally qualified (Vol, LA, Indiv). A recurring pragmatic view was that this would expand access to advice and address patchy provision in some areas ( LA, Vol, Indiv). Several respondents pointed out that non-legally qualified providers already provide much of the current civil advice in Scotland ( LA, Vol) especially for those on low incomes (Vol). Indeed, some stressed that non-legally qualified providers had developed specialisms in some areas of social welfare such as housing and debt which were relied upon as an integral part of the current system (Vol, Indiv, LA). A typical comment was:

" This knowledge and expertise is often more in-depth than the knowledge held by many solicitors" ( LA)

In a similar vein, another consultee considered that funding non-legally qualified providers would be vital if the national co-ordinating body was to meet its aims:

" Funding a range of providers in a range of ways as appropriate to meet identified needs is a crucial part of this" (Leg)

Finally, one respondent took a wider view in commenting that this proposal fitted with the successful experience of other countries which operated a "mixed model" of provision of advice which involved both legally and non-legally qualified providers and also salaried and private lawyers (Indiv).

4.5.2 Qualified Support

Several consultees qualified their support for the proposal by suggesting conditions which they thought should accompany this facility. The most commonly cited condition was for the funding of non-legally qualified practitioners to be accompanied by a robust quality assurance framework (Oth, Vol, LA). It was pointed out that many such service providers already have to abide by recognised standards of their profession ( LA).

Another qualification suggested was that the option to access a qualified advice provider should always exist even though non-qualified advice was also available ( LA, Vol).

One respondent urged that whilst a national co-ordinating body should be able to fund provision by non-legally qualified providers this should be on a Service Level Agreement basis rather than involving the funding of individual cases on a case-by-case basis (Leg)

A further qualification was for recognition that some cases, perhaps due to their complexity, would simply not be suitable for a non-legally qualified advisor to handle (Leg).

4.5.3 Concerns

A small number of concerns were expressed regarding the provision of advice by non-legally qualified practitioners. One view was that their input could be less accountable and more piecemeal than that of their legally trained counterparts (Indiv). Another was that cases which seem to be straightforward initially could become more contentious as they develop, necessitating a qualified legal input part way through their handling (Leg). Making quality assurance work in the context of non-legally qualified advisors was a concern for one consultee (Leg), with another concerned that the taxpayer may end up paying twice for the same advice provision if both legally qualified and non-qualified advisers are involved (Leg).

4.5.4 Views in Opposition to the Proposal to Fund Non-Legally Qualified Providers

Few comments were provided in opposition to the proposal to fund non-legally qualified providers. One respondent questioned whether advice delivered by a provider who had not had legal training should fall under a "legal" aid scheme at all (Leg). Another expressed concern that a member of the public might be misled into thinking that the advice they have received was from a legally qualified practitioner when this was not the case (Leg).

4.5.5 Other Comments

A few more general comments were received on this issue. One respondent saw the provision of advice by non-legally qualified deliverers as a natural progression stemming from the development of greater specialisms amongst the advice sector and the demand to access advice in a greater variety of ways (Vol). Another view was that for many, non-legally qualified advice could help to bring an early resolution to their problem (Vol).

For a few consultees, more information was needed on the effectiveness and value of such services, and how the proposal would work in practice, before they could pass judgement on it (Vol, LA).

4.6 Summary Points

• Of those who expressed a view, a slight majority (57%) was in agreement with the proposed consensual approach to developing better planning and co-ordination of advice services by local authorities.
• The consensual approach was seen as providing the flexibility for national priorities to be interpreted and applied at a local level.
• The most common argument emerging from those respondents who supported a statutory duty on local authorities to ensure the planning and the provision of civil PFLA in their area was that the duty would ensure a comprehensive coverage of services over different geographical areas and different topics on which advice was sought.
• Common topics identified by respondents as candidates to include in guidance and support to local authorities in their planning and co-ordination of PFLA were: how to map unmet need and current provision; information on useful toolkits, templates and established systems; articulation of a national policy framework for PFLA and an agreed quality framework for local service provision; and provision of examples of good practice.
• A common view was that the Scottish Executive should provide much of the support activity required at least in the short term.
• Three-quarters (76%) of those who provided a view were in favour of the establishment of a new national body with a planning and co-ordination responsibilities for the delivery of PFLA in Scotland.
• The most common reason for favouring the establishment of this body was that this would promote consistency of approach to provision and access to legal aid across Scotland.
• Seventy-one per cent of those who responded agreed with the functions proposed for a new national body: national planning and co-ordination; national development and research; and responsibility to ensure provision of services where necessary including second tier services such as training and information.
• Of those who provided a view, the vast majority (89%) was in favour of the national co-ordinating body funding provision by non-legally qualified providers as well as solicitors and advocates.
• A common theme was that being able to direct people to the most appropriate advice provider who could offer a quality service was more important than issues of whether or not the provider was legally qualified.