Access to justice for Scots still out of reach as Legal Aid Board’s annual report published, one law firm ‘booted out’ of legal aid money pot

20 Dec

SLAB_logoScottish Legal Aid Board’s 2009-2010 annual report published, reveals little improvement for Scots in access to justice stakes. THE Scottish Legal Aid Board late last week published its annual review and statement of accounts for 2009-2010 which reveal little has been done by way of applying fairness to legal aid applications for tough cases such as allegations of negligence concerning Scotland’s many professions (including of course the legal profession), challenges to the way people are mistreated by public sector bodies or quangos, and of course, the way victims of injustice are themselves treated by Scotland’s internationally famed prejudiced justice system.

SLAB revealed the cost of legal aid in 2009-2010 was £150.5m, almost the same as the previous year. This figure was around £3m less than it would have been because of the reduction in the VAT rate which came into effect in December 2008. The net cost of civil legal assistance – after taking account of contributions and recoveries – increased by 9.5% to £47.2m, which includes £0.9m additional targeted funding by the Scottish Government for work associated with the economic downturn. The increase in civil legal aid applications will lead to further increases in civil legal assistance expenditure in future years.

SLAB did however claim they were “increasing access to justice” in their report, stating : “The Scottish Government increased financial eligibility for civil legal aid so that those with disposable incomes of up to £25,000 could qualify albeit with contributions. As a result, we granted 616 more applications for civil legal aid last year. This change particularly helps those with more expensive cases who previously would not have qualified for legal aid and would not have been able to defend or pursue cases.”

However, of some 25 cases currently known to me of persons seeking legal aid to recover financial losses attributed to their solicitors negligence, or theft, either little progress, considerably difficulty, or general refusals for legal aid funding appear to be more the order of the day. In essence therefore, nothing much has changed with regard to how Scots who are victimised by their legal representatives can attempt to use the justice system to put right the wrong done to them.

Additionally, the Scottish Legal Aid Board has apparently increased availability of in-court advisers across Scotland (if you find any, please report back on your experiences)

Commenting on the Scottish Legal Aid Board’s annual report, its Chairman, Iain A Robertson CBE, said : “This has been an extremely busy year for the Board with the highest number of civil legal aid applications for a decade. We have increased efficiency, reduced bureaucracy and delivered value for money; it now costs the taxpayer less in real terms to run the Board than it did three years ago, yet we are responsible for delivering much more than we were then. We are committed to providing access to justice and value for money for the people Scotland.”

Lindsay Montgomery CBE, SLAB’s Chief Executive stated, “Scotland is very fortunate to have a non cash limited system of legal aid which is able to respond to changes in people’s needs, as has happened during the recession. As a result many more people have been able to access civil legal assistance over the past year. However, a system like this can only operate successfully if there are robust controls over legal assistance and its cost. This is a key role which the Board provides. These controls become even more important with the increased pressure on public finances.”

From April 2011, the Scottish Legal Aid Board will be changing the way it accepts legal aid applications, abandoning the current paper format to go completely digital, with all applications & accounts being submitted online, a policy SLAB contends will be more efficient & economic for solicitors and SLAB, although it remains to be seen as to whether it will be guaranteed clients will receive full copies of everything their solicitor submits in the online application on their clients behalf.

Commenting on the online application development, Iain A Robertson CBE commented, “The move to legal aid transactions with solicitors being wholly online is a key part of the Board’s strategy to further reduce its running costs. We also believe that in order to deliver continued access to publicly funded legal assistance, but at lower cost, further changes will be required in the way legal aid operates. This will impact on the Board and the legal profession. The Board is already working with the Scottish Government and the Law Society’s Legal Aid Committee on proposals for how this can be achieved.”

On the issue of Legal Aid Fraud, where clients or solicitors lie in legal aid applications to SLAB, the annual report for 2009-2010 stated : “As a result of the work we did in investigating applicants, we withdrew and refused legal aid in a number of cases. This work, in addition to other proactive checks of financial eligibility, led to us recovering or preventing unnecessary expenditure estimated at over £1 million. In the most serious cases, we report the person to the procurator fiscal. In 2009-2010, we made 27 reports to the procurator fiscal where applicants did not tell us about properties they owned or money they had in bank accounts. In such cases, in addition to repaying the cost of their legal aid, the outcomes could include convictions for fraud or warnings or fines.”

However, very few law firms appear to have been prosecuted for legal aid fraud, with either SLAB or the Crown Office itself historically reluctant to send any solicitor into the dock and accuse them of fraud, a matter brought to the fore with a Press Release issued three days before the annual report was announced.

SLAB’s conveniently timed Press Release on a Kilmarnock law firm which ‘withdrew itself’ from legal aid work (pdf) just a few days before announcing it’s annual report stated : “The Scottish Legal Aid Board announced today that it has accepted the voluntary and irrevocable withdrawal by the firm of N S Lockhart Solicitors, 71 King Street, Kilmarnock, KA1 1PT and its sole partner Niels S Lockhart from the provision of all forms of legal assistance; following an investigation into the firm’s practices by the Scottish Legal Aid Board.”

“Mr Lockhart will no longer provide publicly funded legal assistance or have any involvement in any capacity as an agent or working for any other firm or solicitor in any matter which involves publicly funded legal assistance. The withdrawal follows an investigation of the firm carried out by the Board and a subsequent complaint to the Law Society of Scotland.”

“The Law Society Reporter sent its report to the Law Society in July 2010. This confirmed the concerns raised by the Board, about practices Mr Lockhart had adopted in the provision of legal assistance, which had resulted in the submission of many accounts which were not consistent with the principle of working with “due regard to economy” and were not acceptable practices for a solicitor undertaking civil legal assistance.”

“The Law Society can determine whether the conduct of a solicitor provides good reason for them to be excluded from providing legal assistance, in accordance with section 31 of the Legal Aid (Scotland) Act 1986.”

“Mr Lockhart acknowledges that the investigation carried out by the Board and subsequent report to the Society raised continued concerns about his practices. As a result of Mr Lockhart’s permanent and binding withdrawal from legal aid, the Scottish Legal Aid Board has withdrawn its complaint to the Law Society.”

A spokesperson for the Board stated, “Public money has been protected as we have only paid the firm for work which we thought to be reasonable. Any work thought not to be reasonable was not paid.”

Obviously a few blushes spared for the Law Society of Scotland there … but why no prosecution and why no publishing of the investigation & complaint ?

The Law Society of Scotland issued a Press Release in response to SLAB’s latest annual report, although strangely didn’t bother to comment on the law firm which … ‘removed itself’ from legal aid work after the SLAB investigation and complaint to the Law Society.

Oliver Adair, Legal Aid Convener of the Law Society of Scotland, commenting on SLAB’s annual report said: “The concern for the Society and our members – who deliver legal advice to people funded through legal aid – is how they continue to do that with the cuts in public funding announced by the Scottish Government last month. The Society is entering discussions with the Scottish Government and Scottish Legal Aid Board (SLAB) about how an 8% cut to the legal aid budget can be met while maintaining core areas of work and allowing practitioners to afford to provide a service for those who can’t afford it themselves. We have asked the profession to give us their feedback before we go back to Government on how we think the saving might be reached. However, the amount of legal aid money which firms are paid should be viewed in context – it covers the costs of solicitors, support and administrative staff, and the other overheads associated with running a business.”

Readers should note that currently, there are no legal requirements on the Law Society of Scotland to report any allegations of legal aid abuse to the Scottish Legal Aid Board. Discussions have apparently been going on with regard to ‘Memorandums of Understanding” to be created between SLAB, the Law Society of Scotland and even the Scottish Legal Complaints Commission for well over a year, with so far, no outcome. Just why this has taken so long is a matter of public interest in its own right, and I will report further on the matter in the new year.

For now, readers can download the latest annual report from SLAB, and find out which law firms, solicitor advocates or Advocates have received legal aid payments :

Annual Review 2009-2010 pdf

Statement of Accounts 2009-2010 pdf

Press release

  1. Statistics 2009-2010:

    Commentary on statistics / trends – click here

  2. Key statistcs pdf
  3. Performance pdf
  4. Civil tables pdf
  5. Criminal tables pdf
  6. Children’s tables pdf
  7. Contempt tables pdf
  8. Payments tables pdf
  9. PDSO / CLAO tables pdf
  10. Other informaton tables pdf

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