William Flack Blog

David Cameron’s suggestion yesterday that it might be a good idea for council tenants to be evicted if they get a job which would enable them to afford more expensive accommodation has rightly set a number of political alarm bells ringing. There is a detailed post about current Con-Dem Housing Reform Plans at Nearly Legal.

Cameron’s idea is so incredibly stupid that its hardly worth going through the counter arguments about people’s homes, disruption of children’s lives/education,  disincentives for looking for work and turning council estates into holding camps for unemployable labour market cattle. Oh dear. Oh dear.

The suggestion that eviction should be the reward for a council tenant obtaining a well paid job brings us full circle from the suggestions made by New Labour idiot Caroline Flint as recently as February 2008 that council tenants should be evicted for not getting a job. This was the implication of her proposal for “commitment contracts” whereby tenants would have to be committed to getting a job. Failure to do so would presumably have amounted to a breach of the tenancy and lead to eviction.  Council tenants seem to be facing a lose-lose situation.  They get evicted if they don’t get a job. They get evicted if they get a job.

Council tenants are being used here as political footballs. The problem is that there are not enough jobs and not enough housing. Rather than confront the more complex issues of how we provide enough affordable housing  politicians find it easier to play to the cheap seats by picking on council tenants who are portrayed as either greedy for wanting a “home for life” when they are working or lazy and scrounging for expecting one when they are not working.  This may win notional middle class floating votes but it takes us further away from reality and moves us closer to an ugly deluded future.

I am going to resist the urge to rant about the Legal Services Commission and this latest nightmare bid round. The LSC will soon be completely dissolved following abolition and its time for me to move on.  Instead I will try and have an initial look at some consequences  of the Civil Contract bid round for 2010.

It is still too soon to form an accurate view of the changes to the supplier base which will  take place  The dust has yet to settle but it would seem that the talk of carnage and destruction is going to prove to be well founded. John Bolch at Family Lore has captured the feelings of many with this artistic comment on it all.

It has been very frustrating during the past few weeks that I have not been able to find out how the results have been coming in around the country. The Ilegal site has been a useful source of information as has the Nearly Legal blog.  I have generally had to rely on word of mouth. Now the the results have come in the Law Society Gazette site has also been a useful source of information and analysis. I still don’t have a lot of facts to go on though so please go easy on me if you think I have got it wrong.  It would be much appreciated if you could leave a comment correcting any errors.

What I do know is that 30% of supplier organisations with Social Welfare Contracts have not been offered new ones whilst a staggering 46% of firms with Family Law Contracts have not been been offered new ones.  Some highly reputed supplier organisations face closure. I hope that this can be challenged. It also seems clear that many of those suppliers who have been offered contracts have only been offered small numbers of matter starts. Many of these offers are for so few matter starts that the contract would be impossible to perform.  I can’t see how a supplier can employ a specialist housing solicitor if that solicitor is only allowed to carry out work on 50 matters a year where each matter is worth only £176.00. It would be dangerous to assume that exceptional cases and work carried out under full Legal Funding Certificates could make up the difference.

As Catherine Baski has reported in her blog for the Law Society Gazette on 28 July, those organisations who have been able to stay afloat after all these storms and make ends meet will still face uncertainty ahead in the form of Kenneth Clarke’s major review of Legal Aid.

Judging by the results of the 2010 Mental Health Contract which came out in June I would predict that Duncan Lewis solicitors will have picked up a lot of Social Welfare and Family contracts. It has been reported in the Law Society Gazette that Duncan Lewis were able to obtain Mental Health contracts in 10 new procurement areas at the expense of established firms in those areas. The same is likely to happen in Social Welfare and Family work. I have also heard rumours that Shelter has also won a large number of Social Welfare Contracts.

One very interesting detail in the recent news has been the reported shift in the Duncan Lewis work model away from the paralegal-heavy pyramid structure on which they have based their meteoric rise to become the biggest Legal Aid supplier over roughly ten years towards the adoption of the relatively new consultancy model so far only really associated with Scott-Moncrieff Harbour & Sinclair and Blacklaws Davis LLP.

As recently as last December Adam Makepeace of Duncan Lewis was writing in the Gazette in defence of the pyramid structure model in his article Size Matters When You Take On Civil Legal Aid Work, If You Want To Make A Profit. The model which he outlined there appeared to be the the opposite of the consultancy model advocated by Lucy Scott Monkreith in her article Virtual Against Traditional: Contrasting Legal Aid Business Models which appeared in March 2010. It now appears that the 28 new Mental Health solicitors which Duncan Lewis are seeking to recruit will be consultant solicitors rather than employees.

As a consultant solicitor myself I see the Duncan Lewis move as a very good thing. This is not just because it means more work for consultant solicitors. I think that it will be a good thing for Duncan Lewis. It will reduce their overheads and leave them in a stronger position to survive the inevitable disruption which is to come with the Legal Aid review. I also think that it will be good news for Duncan Lewis’ clients. From what I have heard the bad publicity which Duncan Lewis has attracted in the past has arisen primarily from their over reliance on paralegals to carry out specialist work who they have found it difficult to supervise well enough to avoid client dissatisfaction. I believe that the adoption of the consultant model can only assist suppliers in avoiding this problem.

The move by the country’s biggest Legal Aid supplier towards the consultancy model may mean that one significant result of the new contract rounds will be that Legal Aid suppliers will change from being employers of lawyers into the providers of facilities for sub contracted lawyers .  The supplier becomes a platform for self employed specialists to provide services remotely through computer systems rather than a workplace where employed solicitors and paralegals work out of their offices.   Shelter who are the very much the Not For Profit Sector equivalent of Duncan Lewis have also come to rely on paralegals being supervised by in house solicitors in the same way as Duncan Lewis. They too may also need to change in this way if they are going to be able to survive for the for even the three year contract period or until Kenneth Clarke changes shifts the goal posts again after his review.  I think I will have to deal with the details and implications of these changes in another post.

The new Housing Minister Grant Shapps posted the interesting tweet shown here on Monday 26 July saying that it is time for honesty in rough sleeping. This stems from his concern that local councils have been providing very misleading figures for the numbers of people sleeping rough in their areas. The minister believes that the real figures are as much as three times as bad as the councils would have us believe. It is impossible to avoid the conclusion that the minister believes that the approach to the figures taken by councils up till now has been dishonest.  He is right of course.

Anyone who assists homeless people in dealing with local councils knows that the whole system is shot through with dishonesty. Applicants are routinely given false information by staff so as to prevent them from being able to pursue applications for accommodation. This has become known as Gatekeeping. Management respond to complaints about Gatekeeping by suggesting that the applicant must have been mistaken as staff would never act unlawfully. This refusal to engage with the problem suggests that they are actively encouraging staff to behave in this way.  There are lots of other areas where dishonesty is widespread. I could go into detail but I will leave that for another day. Suffice it to say that like the dodgy calculation of roughsleeper numbers (see this Independent article from nearly ten years ago) most people have come to take it for granted. Its old news.  I am sure that in private council staff consider that this behaviour to be a necessary evil if they are to implement a notionally rights based policy towards homeless persons using only limited resources. That’s another story though.

The problems arising from dishonesty are compounded by our  system of administrative
law which prevents applicants from challenging what councils say.  Disputes of fact are almost always resolved by courts automatically accepting the council’s version of events. This presumption is based on a judicial refusal to even entertain the suggestion that council staff would act in a dishonest manner.

It takes a lot to get me to praise a Tory but I am impressed by Grant Shapps’ refreshing approach and his willingness to call out dishonesty when he sees it. I would welcome further work by the minister to review the wider treatment of homeless people by councils. There are plenty of other areas where it is time for honesty. Perhaps it would be too much too hope for that the minister’s willingness to grasp the nettle of local authority dishonesty might spread to the judiciary. Some new laws might help.

I thought I would try and broaden the scope of this blog to cover reviews of gadgets which are useful for lawyers. My first review is of the iPad which I have been using since very shortly after they were released here. That’s nearly two months now.

The iPad is a truly wonderful gadget well worth the roughly £550.00 it cost me. Actually with accessories the bill came to about £750.00. These included a blue tooth keyboard which I am using to write this post on the IPad and some other stuff.

I have a paperless office. Almost all of my working day is spent sitting in front of a dual screen desktop PC reading, creating and sorting digital documents. Even if I did not spend so much time at a desk I think that like most people I would find it difficult to read a 25 page Court of Appeal judgment on a desk top PC.  Nevertheless as part of my work I have to read a large number of these sorts of documents along with blog posts and other documents such as  200 page disclosure bundles. It seems to me to be a terrible waste of paper and ink to print these documents off in order to read them once before throwing them away because they are stored digitally. I therefore need a device which I can use to read these documents while sitting back in a comfortable chair rather than sitting at a desk. The iPad is perfect for this.

There are some draw backs. The lack of Flash means that many of the videos such as on the BBC news website which I took for granted before cannot be viewed. A camera and telephone functionality would have been good but I can live without these for now. I can watch Flash media on my PC and I have a phone already. To me the main problem with the iPad  is stopping other members of my family using it. My son who is nearly two will not let me use it without him sitting with me and watching YouTube videos and children’s programmes from the BBC iPlayer on it.

Steve Jobs has described the iPad as magical and revolutionary.  In his interview at D8 Conference in June he expanded on this.  He said that using the iPad it feels as if some barrier between the machine and the user has been removed which changes the whole experience.  I totally agree with this and with with his view that we are now just scratching the surface of what can be done with the tablet computer.  I think that if Karl Marx were to see this he too would describe it as revolutionary in that it takes us from one epoch into a new one.

For those who are not already aware please let me be the first to tell you the excellent news that  the FreeLegalWeb has unveiled a new Beta housing law pilot site.  Other areas of law are also covered.  It is very impressive indeed and marks an exciting new stage in the development the Internet for lawyers and members of the public trying to make sense of the law

I have been a supporter of the FreeLegalWeb Project since I first heard about it a couple of years ago. The aim is to provide a free resource where the public can find statue and case law together with commentary to make sense of the law.

One of the things that I most dislike about being part of the legal profession is the way in which we are are under commercial pressure to keep the law as obscure and impenetrable as possible.  The harder it is for the citizen to understand the law the more money there is to be made for lawyers in translating small portions of  it for them one client at a time.   The Internet was supposed to free us from this sort of thing.  It has been slow in happening.  There have certainly been some big steps such the Garden Court Chambers Resources the Arden Chambers E-Flashes and the ground breaking Nearly Legal blog.

Ethics and politics aside this is an exciting site if only for the content and format. There is easy access to statute and case law along with related articles and commentary. Visitors to the site are encouraged to comment what they find and become authors themselves. This makes the site a very valuable tool for practitioners and members of the public trying to find out how the wider law is applied to particular situations.

I believe that once this site is up and running with wider areas of law and has a community of participants it promises to change the relationship between the citizen and the law in a way that the Internet has always seemed capable of but has not yet been able to deliver on.  The FreeLegalWeb seems to me to provide a step for online legal information comparable to the arrival of the Google search engine for general information on the web. I would not want to sound like I am taking its success for granted though and hope that people will get actively involved in supporting the project. There will be a public FreeLegalWeb Meeting on Wednesday 6 October 2010 (details to follow) which I will be definitely be attending.

I don’t want to sound too melodramatic but sectarianism appears to be alive and well amongst many housing lawyers in the UK.  People aren’t getting shot or anything but there is still a problem.  The two factions are the Housing Law Practitioners Association (“HLPA”) and the Social Housing Law Association (“SHLA”) HLPA consists of lawyers who see themselves as working for the benefit of tenants and people applying to councils. SHLA on the other hand is for people who either work for social landlords or local authorities and the lawyers who work with them.

HLPA has been around for many years and has made no secret of its hostility towards landlords and local government. SHLA was founded in 2005 in many ways as a response to HLPA. The SHLA website refers to it having been set up by a group of housing professionals and lawyers who saw the need for a forum where ideas and information could be exchanged and discussed. It was a shame for all concerned that HLPA could not provide that forum.

Both organizations have a lot in common. They consist of people who work in housing law and exist so as to provide their members with training and a chance to exchange information. The issues they discuss are often exactly the same. For example the SHLA Annual Conference in June 2010 covered the same issues of anti social behaviour and public law defences to possession claims which were dealt with at the HLPA Annual Conference December 2009.  Nevertheless in order to join HLPA one has to be able to show that they are principally working for those receiving housing services. SHLA on the other hand say that they will grant membership where they are satisfied that the applicant regularly works or acts for social landlords. That means that I am excluded from SHLA membership and would no doubt be turned away from their meetings if I tried to attend.

Why There A Split Like This Between Supposed Professionals

There may be many reasons for this schism but perhaps the most obvious is  that people who do not feel confident with the legal issues involved in their work tend to personalize the issues. This means that those acting for tenants quickly come to see landlords or local government staff and their lawyers as doing what they do because they are enemies of the people. Those who work for councils and their lawyers tend to see those who work for tenants as greedy opportunists who line their pockets by using legal trickery to make it more difficult for councils and landlords to function. Many of the lawyers who attend HLPA are new to the game and are susceptible to this way of thinking. Many of those who attend SHLA meetings are social landlord or council staff who lack legal training and therefore feel even less confident. There is a lot of money to be made by lawyers who can keep these groups as hostile towards each other as possible.

Why The Split Is A Bad Thing

I think that the split between the sections of the profession is a bad thing for a number of reasons. It encourages bad practice on the part of the members of each group who are encouraged to see themselves as being involved in a struggle with the other faction rather than recognizing the need to work together in the interests of the wider public.

It impoverishes us as professionals by preventing the sharing of information and hearing the views of those “on the other side”. I would very much have liked to have heard what the speakers at the SHLA conference had to say. We should be able to debate the issues which we face as professionals rather than adopt a bunker mentality and only talk to those who we are confident already agree with us.

It also leads to a waste of huge amounts of tax payers money on unnecessary legal expenses arising from cases which cannot be settled due to the hostility and lack of communication between those acting for the parties. A barrister I know told me that he was approached at a SHLA meeting by three members of staff from a local authority housing department who wanted to ask him questions about points I had been raising with them in correspondence which they were worried about. Is it too much to hope for that we might be able to come up with a way of working which would allow them to talk to me about them?

What Can Be Done To Heal the Split

A first step would be to hold joint meetings between SHLA and HLPA where issues such as how to deal with neighbour nuisance or mental health issues could be discussed.

A second step would be to drop the factional restrictions on who can join each group or attend their meetings.

We as lawyers should aspire to be like Tessa Shepperson of Landlord Law Blog who is able to provide a service via her blogging to all those involved in landlord and tenant work and Arden Chambers who appear to be able to work equally well for both camps.

Having said all that self-righteous stuff I have to admit all my client base is entirely tenant/applicant based and that I spend much my working life making a nuisance of myself to landlords and councils. If anyone from any of those organizations is reading this I would welcome any comments which might enable me to recognize where I have been guilty of sectarianism myself and to suggest ways we might be able to work more closely on the wider issues.

Back in 1988 I visited Albania to see what a hard line communist country which still publicly embraced Stalin as a great leader was like. My tour group had guides who I think worked for the security services. They gave us talks in our coach as we drove past hundreds of machine gun emplacements and  miserable looking citizens. During one talk they told us of 95% support for the government in recent elections. I asked them who they thought  5% who did not support the government were and was told that this group consisted mainly of mentally ill people and criminals. I have always been wary of anyone who claims support or success rates of over 90%.  Even the guide didn’t seem to be too convinced of the answer he gave but did his job and gave it anyway.

Fast forward to 2010 and I was reminded of my trip to Albania when I received my regular propaganda email message from the CLA (Community Legal Advice – the free and confidential advice service paid for by the Legal Services Commission) which told of their performance statistics for 2009/2010. These included the claims:-

“We have helped over 417,000 people in 2009/10”

“We have answered 96% of our calls straightaway”

“95% of our clients would recommend or have recommended the service”

Approximately 2.2 million visits to our web site in 09/10

750,000 leaflets downloaded from the website in 09/10

These claims may seem very impressive at first glance but for me those 95% and 96% figures set the bullshit detector alarm bells ringing.  I have not conducted any independent research into this area so I can’t say with certainty that the CLA are not providing a truly heroic service and that 95% of 417,0000 people are not out there now busy recommending the CLA to others.  However I would raise the following questions, answers to which would make me feel better about the CLA:-

1. How do you define and measure “help” in this context? For instance do you include advice to the effect of “I am sorry to say that nothing can be done to stop you from losing your home,” as helping someone by advising them about their situation?
2. Why is it so important that a call is answered straightaway rather than say after two or three rings? Is the person who answers the phone a receptionist who takes a message or puts the caller on hold or someone who can actually assist the caller then and there?
3. How did you go about asking people if they would recommend the service? Did you call them back and ask them? How many people who actually called you up told you that the CLA had been recommended by someone else who had used the service?
4. How do you think that 2.2 million visits to your web site has achieved anything for the visitors and how have you measured this?
5. What do you think happened to the 750,000 leaflets which were downloaded and what has been achieved by them?

I know I must seem like someone who loves to endlessly bitch about the Legal Services Commission but I do assure you I am not. I just get so fed up with seeing the limited Legal Aid budget wasted on half thought out projects while the people providing real services on the ground are being driven out of business by the Legal Services Commission.  I  worry that despite its grand claims the CLA is only of very limited use. Its like having a telephone line for people suffering from tooth ache.  Trying to “help” them over the phone is not going to achieve anything except wind them up. The only really useful thing you can do is refer them to a dentist.  The CLA might be able to provide a very good triage service by working with and referring people to solicitors who might be able to actually do something to assist the clients beyond talking or sending off a couple of pro forma letters. To try anything more than that is to waste time and money. Worse still the CLA has been receiving funds which could have been used to fund organizations providing real help such as the Refugee & Migrant Justice which has recently had to close due to cash flow problems.

I recently wrote a post on the Benefits & Work Blog where I thought I was pretty positive about the CLA. Nevertheless one person who read it commented:

Has anyone commenting here actually used this advice line? It is totally useless and a waste of Legal Aid money. It is incompetently run and deceptive in that all they do is take hours to write down everything you say about your problem and then can’t give advice because they are not specialists and all this at 4p a minute for someone who is on benefits. If you ask for a call back you most likely won’t have your call returned when they say they will ring. It seems to me this is just a way of getting all sorts of personal data about benefit claimants, to pass on to who knows? Look at their freedom of information, it’s full of loop holes on not giving you access to your information.

Maybe the CLA would say that this just reflects the views of a tiny mentally ill or criminal minority.

I have managed to get my act together and produce another video blog post  It has taken a very long time but still looks pretty amateurish. Yes. I know. I look like a freak and the video is really boring etc etc but I have to start somewhere. The video is also posted on the Social Welfare Law Wiki which I have also produced.

If anyone is still reading this blog and knows anything about Social Welfare Law or any of its components (housing, welfare benefits, immigration etc) please get involved in contributing to or editing the Wiki or send me any material at wflack63@gmail.com

Something tells me that Carolyn Regan was not so grinning happily as in this picture when she announced her resignation as Chief Executive of the Legal Services Commission earlier this month and the government announced the effective abolition of the Commission.

No personal offence intended but I don’t think that anyone (apart from those of her colleagues who will lose their jobs) will be sad to see the back of Ms Regan or the Legal Services Commission.  I suspect that the wider public have no idea that they were ever there in the first place. Those of us involved in the provision of legal services have long despaired at the damage caused to those services by the work of the Commission. The levels of vandalism and sheer incompetence seemed to reach new depths with every passing month. The most recent examples include the new civil contracts which after months of delay have recently been unveiled revealing provisions which it is clear that nobody at the LSC or anywhere else understands with any confidence. These  will presumably have to be clarified by hugely expensive Judicial Review proceedings like the last contract three years ago. This month they announced that they had run out of money and could not pay anyone till next month.

The underlying problem with the Legal Services Commission was that it was run by people who like Ms Regan were mostly not lawyers and had no experience of  providing legal services. This meant that they could not engage in any meaningful discussion with the legal profession about how to administer quality legal services within fixed budgets and became defensive and hostile.  Instead of constructive engagement with the people providing legal services the Commission embarked on a series of misguided initiatives which were ultimately aimed at excluding lawyers from providing legal services. Soon after its creation the Commission’s corporate mission statements started to refer to “our clients” rather than to the clients of service providers. This was compounded more recently by the LSC creating its own Community Legal Advice Centres through which the Commission intended to cut out the providers altogether and provide services direct to the public themselves.  Meanwhile rates of pay were cut and other measures introduced which have led to mass migration of experienced lawyers from the Legal Aid. These initiatives reminded me of how the Roman emperor Caligula made his horse a senator. In doing so he demonstrated his contempt for and power over the senate. I suspect that if Jack Straw had not stepped in it would only have been a matter of time until there was a horse out there somewhere with a Community Legal Service logo on its blanket giving quality legal advice and achieving positive outcomes for his clients.

In 2009 the LSC wasted thousands of pounds of its limited budget on a pointless media campaign celebrating the fact that “Legal Aid Is 60”. The web site which they set up for people to add their comments about Legal Aid had to be heavily censored after large numbers of comments about the destruction of legal services were posted instead of the praise and celebration which had been hoped for.  The Legal Services Commission could shut its own ears but it was perhaps inevitable that the Minstry of Justice would eventually wake up to what was going on.

It may well be that the Ministry of Justice will make an even worse mess of running Legal Aid than the Legal Services Commission.  There is more political capital to be made from being seen to give “fat cat” lawyers and their “scrounger” clients a hard time than being seen to be giving them a helping hand.  It may be that in time we will be begging Ms Regan and even Crispin Passmore (remember him?) to come back and make everything right again. Stranger things have happened. I would hope though that the Ministry will try and ensure that those they entrust with managing Legal Aid are people who have some experience of providing legal services and are able to work with the legal profession rather than waging war on them.

I found an interesting post at ITProPortal about this new mobile application the ASBOromter which tells you the level of anti social behaviour in different areas. The information used comes from government databases.  You can read more about it at the ITProPortal site.

One one level this is quite a scarey development. It would seem to only be a matter of time until mug shots, names and addresses of people against whom ASBOs have been made will be available in this way along with details of other convictions. Green markers for nonces, Yellow markers for scum who mug old ladies, Red markers for filth who sell drugs to kiddies etc etc.  These people will then be visited by mobs of Sun readers carrying burning torches  and nooses.  It is worrying to think how we will learn to use the increased amounts of data that become available

On a more positive level there maye a future ahead of us where people can get data about their local authorities and the people who work there. For instance people applying as homeless to the council could find out how long their caseworker has been doing the job, what training they have had and how many of their decisions have been overturned on review.  The same is true of solicitors and even Judges. It should also be possible to view the repair history of properties offered to tenants who might have wanted to know that the last three tenants were moved out due to chronic condensation problems which were not dealt with before the mould which is due to return in three months was washed off and the walls repainted.

Maybe the spectre of Big Brother spying on us which is usually held up as a reason for restricting access to  what we consider should be private data is an illusion. That idea is based on the assumption that the technology required to amass the data was only available to those who have traditionally governed us and that access to more data will only make them stronger and the rest of us more vulnerable to the abuse of power by them. However, maybe the combination of the free flow of online data and the low cost of accessing and analysing through cheap computers and phones  will actually reduce the power of these state and private sector organisations as citizens are able to hold them to account. That does still leave the problems of people’s right to privacy from each other and not just from the state.  The lynch mobs with the i-phone apps are definitely still going to be a problem. I would hope though that a more informed population might not feel so threatened by perceived deviants in their midst and would come to view the sort of vigilante approach of the present time as barbaric in the same way as we now think of attending public executions or paying money to view and taunt the patients of mental hospitals as people did in days gone by.