JUSTICE AT RISK

‘Quality and value for money in asylum legal aid’: Julie Gibbs and Deri Hughes-Roberts, November 2012

Final project report: This report aims to help policy makers, practitioners and others consider how best to ensure value for money in civil legal aid. It focuses on experience in the asylum legal sector; brings together the results of research undertaken earlier in this project, some of which has already been published; and seeks to draw out the lessons. This report was commissioned in 2009 by Refugee and Migrant Justice, in partnership with Asylum Aid and the Immigration Advisory Service. Since that time, both Refugee and Migrant Justice and the Immigration Advisory Service have entered administration. In June 2011, the Runnymede Trust was given permission to publish the outstanding reports, including this one. Asylum Aid remains a partner in the final report, together with the Law Centres Network (formerly the Law Centres Federation). The project has been funded throughout by the Baring Foundation.

p.42:11.Conclusions

11.1 The benefits of investing in early, quality advice. 

The research reviewed in this final report of the Justice at Risk project indicates that early, quality legal intervention in asylum cases will result in faster, fairer, more sustainable – and therefore more cost-effective – decision making, provided a proper quality threshold is met. Representatives must establish the full factual and evidential basis of the case and place it before the decision maker in the form of a witness statement and supporting documentary evidence that is tailored to the individual client’s circumstances.

Quality of legal advice is especially important in asylum cases. The law imposes a particularly high standard for decision making in the asylum process. This is not surprising, given the matters at stake:
“It has been said time and time again that asylum cases call for consideration with ‘the most anxious scrutiny’: R v SSHD, ex p Budaycay. That is not a mantra to which only lip service should be paid. It recognises the fact that what is at stake in these cases is fundamental human rights, including the right to life itself”.

Unlike other areas of law, there is rarely any official documentation of a case or witnesses. The claim must be established from the client’s personal testimony and the factual basis of the claim can often span several years. For these reasons, asylum cases require a much more extensive fact-finding exercise than in other legal aid cases, frequently with a client who has been traumatised. Because of the absence of other evidence, most cases will ultimately turn on whether the asylum seeker is to be believed. The assessment of credibility is a complex task and the presentation of the case requires skill and care on the part of the representative.

This report looks at the evidence of whether the current system for paying legal providers on asylum cases delivers quality and value for money, and concludes that it does not, suggesting ways in which the system could be improved, based on the available research.

11.2 The benefits of investing in early, quality legal.

The literature review, undertaken as part of this project, found a significant body of research that suggests early, quality legal intervention results in faster, better quality, more sustainable asylum decisions. This includes evidence from the
evaluation of the joint UKBA/LSC pilot of the Early Legal Advice Process (ELAP), following which ministers are now evaluating the process in a whole UKBA region, with the possibility of rolling it out further(Aspden, 2008: 17).

The ELAP pilot examined the impact of early, quality representation on the efficiency of the asylum decision-making process. One of its main aims was to ensure the full factual and evidential basis of the case was put before decision makers at the earliest opportunity in the form of a witness statement and supporting evidence (Ibid: 5). To facilitate this,
cases were paid at an hourly rate rather than by fixed fee.

The evaluation found that the ELAP process had the potential to deliver considerable overall costs savings (Ibid: 9). This required additional investment in quality from the outset. The average fee income for legal advice at the initial decision-making stage was £977; the fixed fee for the same work would have been £755. However, the pilot delivered high
success rates, saving the cost of unnecessary appeals at a conservative estimate of over £4,000 per case (Ibid: 67, and Annex 14).

11.3 Definition of quality
Section 7 of the report describes the definition of quality formulated through this research project.
Elements of the extensive project literature review, which examined key stakeholder perspectives, were distilled to determine which approaches and features were essential to quality legal practice in asylum work. This definition was also informed by the results of primary research with refugees.

The definition of quality highlights the following the key elements:

• Professionalism and expertise, tactical awareness and judgment, which enables, inter alia, the representative to establish the full factual and evidential basis of the case at the earliest opportunity and present it to the decision maker in the best way.

• The quality of the one-to-one relationship between representative and client, helping to establish the client’s trust and confidence in their representative, and encouraging early full disclosure of the facts of the case.

As in ELAP, the Justice at Risk definition of quality aims to ensure the full factual and evidential basis of a case is placed promptly before decision makers in the form of a witness statement and supporting evidence. While stressing that legal representatives must be efficient, the definition allows for representatives to take sufficient time to prepare the case in order to meet the key elements, plus they must also foster a good one-to-one relationship with the client.

11.4 The relationship between time and quality
The value of allowing sufficient time to deliver a quality service is supported by primary and secondary quantitative research:
• The case file review undertaken in this project was developed from the objective elements of project definition of quality. The outcome of the file review, published in this document for the first time, found a ‘strong and positive
correlation between quality and the amount of time spent giving advice’ (see Section 10).
• LSC research into quality and cost showed a ‘significant independent relationship’ between advice time, quality and outcomes (LSC, 2001: 185).Details of this research are set out in Section 2 of this report.
• Further evidence of the relationship between time, quality and outcomes arose from the ELAP pilot evaluation (Section 9).

11.5 Fixed fees reward those who spend less time
A fixed fee scheme is one where the same fee is charged, regardless of the length, quality or outcome of a piece of work. In the absence of effective quality controls, the research notes that this can incentivise work of poor quality.
For example, paying a fixed fee does not incentivise representatives to undertake the detailed and timeconsuming evidence gathering that is essential to asylum cases and required in the ELAP Solihull pilot. In fact, interviews undertaken in this research suggest that UKBA decision makers now rarely receive witness statements in fixed fee cases
(see section 3.3). Interviews with legal advice providers and other stakeholders suggest that some representatives are cutting corners and turning away vulnerable clients with more complex cases – cases which therefore take longer to prepare (section 3.4).

A Ministry of Justice review, instigated by Lord Bach, detailed concerns over possible abuse of the fixed fee system, including representatives ‘cherry picking’ easier cases and providing short units of advice (Ministry of Justice, 2009).The review also highlighted potential difficulties for specialist providers. Section 3 looks at evidence that supports these concerns, obtained from the LSC and through interviews with stakeholders.

In 2009/10, 29% of suppliers were in breach of a key performance indicator (KPI) designed to prevent abuse of the fixed fee scheme. They breached this KPI by spending little time on their cases on average while collecting the full fee (see
Section 3.2). Other findings showed that 27.3% of asylum fixed fee cases earned over twice as much as they would have been paid at an hourly rate. It is likely that many of these cases are not brought to a conclusion. Further legal intervention and repeat fees would be required, driving up overall costs. The LSC’s research predicted that representatives would be twice as likely to be unaware of the outcome of a case paid by fixed fees (44% of cases) compared to an hourly rate (22% of cases) (See Section 3.1 and LSC, 2001: 72).This suggests that, most often, the case was closed by the provider without it being concluded.

While this data does not allow for a quality comparison between providers, other aspects of the research suggest a correlation between time and quality. Taking this together, there appears to be scope to spend resources more effectively to achieve value for money within the same budget limit, provided that effective quality standards are enforced.

11.6 Measuring quality
Peer review is currently held to be the most accurate and fair assessment process of quality. Once reviewed, firms are given a competence rating. Level 1 is the highest and Level 5 the lowest. Level 3 as the minimum standard required for retaining a legal aid contract (LSC 2005: 5).

Significantly, the Level 3 competence threshold is set below the level for quality asylum legal work as defined in this project. It requires work to be adequate, but not always extensive; it requires adequate but limited communication with the client; and it only requires representatives to deal with the presenting issue, not linked issues. This Level 3 threshold contrasts sharply with the Level 2 standard, which requires:
• work to be tailored to the client’s individual circumstances
• issues to be progressed comprehensively, appropriately and efficiently
• the client to be advised correctly and in full
• the representative to employ tactics and strategies to ensure the best outcome of the case
• the supplier to be proactive and add value to the case (Ibid: 11).
These differences help explain how representatives are able to standardise and cut corners in casework. It does not meet with the expectations of representation in the ELAP process. The Level 3 standard seems inconsistent with the special
demands placed on legal representatives by asylum cases, where a client’s witness statement is essential to an effective decision-making process.
The minimum peer review standard is set to low to ensure value for money in asylum cases. It should be raised to Level 2.

11.7 Value for money
One of the insights provided by this research is the absence of effective systems for monitoring value for money in asylum legal aid. There are no value for-money key performance indicators (KPI) for the great majority of asylum work. Currently, the only context in which the LSC has looked systematically at cost and outcome is in ELAP. The evaluator of the ELAP pilot was clearly impressed with the way value for money data was collated:
“It would be appear to be crucial that the LSC should employ such a special reporting mechanism to ensure effective monitoring of the cost effectiveness at each stage of the process by all providers.” (Aspden, 2008: 72)
The LSC should adopt this recommendation beyond ELAP.

11.8 Commissioning legal services
Public policy on commissioning public services is increasingly expanding from a focus on outputs only toward creating incentives for outcomes and the delivery of ‘social value’. The ELAP process can be viewed in this same broad context, and this report indicates how it might inform thinking on commissioning legal services to provide better value for money.

ELAP evaluation findings present a challenge to the current, output-based fee structure. When the pilot was designed, it was recognised that the fixed fee system was not appropriate for this process and so payments were based instead on hours of work.

Considering our experience from the limited rollout of ELAP, a fundamental decision must be made on what payment system to use in the future so that it ensures quality, value for money and better outcomes for clients. ELAP should be rolled out nationally in line with the five funding principles set out in 11.9, and it should be underpinned by a quality standard commensurate with the work expected of legal representatives in the process.

11.9 Recommendations and funding principles for reform
A new approach to the funding of asylum representation could enable the decision-making process to deliver sustainable, fair, faster and more cost-effective decisions. This would require a move away from a payment structure linked solely to outputs, towards one which seeks to incentivise behaviour that leads to good outcomes. This structural and cultural shift is also essential as a safeguard against abuse of the system that should ultimately guarantee all people
access to representation, including the most vulnerable.

We recommend the following: Five principles for reform

Lessons from this research suggest the new approach should include the following five principles:

• Funding should incentivise early, sustainable, fair decisions and provide clear value for money.
A ‘full life’ assessment of value for money should include potential savings to the end of the decision-making process for the Home Office, the Ministry of Justice and other public bodies. Value should include social value.
• Legal aid payments should reward quality and good client relationships. It must be sufficient to enable the representative to establish the full factual and evidential basis for the case, and submit it to UKBA in a witness statement
with supporting documents.
• Funding should be sufficient to meet legitimate needs at all stages of the case.
• All clients should receive advice that corresponds with the complexity of their case, which means that some clients with more complex cases will need a greater investment in legal support.
• The scheme should incentivise representatives who bring cases to completion. Short pieces of advice may add value to a case, but should be paid less than full representation.

Other points to consider
In the light of research considered in this report, the following more specific points of design might also be considered:
• Higher quality thresholds. An outcome focused quality threshold ought to be applied, set at a level which secures these principles are enforced. Firstly, there should be a step increase in the number of peer reviews to eradicate performance at Levels 4 and 5. The peer review threshold should be raised to Level 2 in asylum cases to reflect the special nature
of the work. All representatives should be peer reviewed, within a specified time frame and prior to any move to best-value tendering.
• Introduction of value for money indicators.
Value for money should be assured through the development of specific performance indicators beyond the ones currently in use. We should consider indicators that link cost with outcomes. The LSC should report annually on overall performance of suppliers against KPIs. A value for money monitoring system should be adopted by which representatives report on cost and outcomes, as recommended for wider use in the Solihull pilot evaluation.
• Robust monitoring. There should be robust monitoring of supplier performance, with a particular emphasis on value for money. The monitoring system used in ELAP should be rolled out for all cases. Monitoring should scrutinise suppliers that earn more from fixed fees than hourly rate work. Suppliers should be prioritised for peer review on the basis of performance. Feedback loops should ensure prompt learning and action on both good and bad practice.
• Payments reflecting higher costs and complex cases. More complex work that requires representatives to be accredited at Level 2 of the Immigration and Asylum Accreditation Scheme should be paid at a higher rate. The legal aid system should incentivise appropriate time being spent on client group cases that typically take longer to prepare, such as those relating to children and fast-track detainees.
The ELAP approach of paying for cases on an hourly rate is both straightforward and relatively free of the risk of unintended consequences. It is tried and tested – not only in ELAP, but also for the ongoing funding of the cases of children and fast-track detainees. One of the main concerns from a funding perspective would be to ensure that representatives do not spend more time than is necessary on a case. Since 2004, this risk has been managed by
imposing an advice time limit on each case that can only be extended with the LSC’s prior authority.
The move to best-value tendering will pose a particular challenge to quality representation.

Price competition based on the current low quality threshold will force quality providers out of the market. Tendering on a higher quality threshold will safeguard and promote quality legal advice, secure better outcomes for asylum seekers and value for money for government.