Tinkering with the nuts and bolts of legal aid boosts performance for all

Iain Robertson, who has held the post since April 2006, prefers a Tom Farmer metaphor: "He identified the relatively limited number of mechanical problems that make up the majority of occasions when your car refuses to go. He developed a business strategy that specialised in fixing the most common problems with minimum fuss and at reasonable cost."

The route to maximum benefit and minimum fuss nevertheless indicates a significant strategic change of attitude for the SLAB.

"All our forms can now be completed online," says Montgomery. "That reduces the time taken to turn around an application and largely eliminates the chances of the application containing errors when we receive it."

Robertson adds: "So much administrative time was taken up returning applications that weren't properly completed.

"By March 2011 we intend to be a largely paperless operation."

The SLAB has been in business for more than 60 years. It will handle about 150 million this year – two thirds going to criminal legal aid and one third to civil legal aid.

There is still considerable discontent among criminal legal aid practitioners about the effect summary justice reforms are having on their ability to serve the interests of justice and their clients, and sustain their take-home pay.

In civil legal aid there have been two developments in the past year that indicate a nudge on the tiller.

Last April justice secretary Kenny MacAskill announced an apparently dramatic easing of income eligibility criteria for Scots who might need financial assistance in pursuing a legal case or defending themselves against one.

"Civil legal aid is being rolled out, not rolled back." he said. As a turn of phrase it was neat, concise and carried a sense of progressive intent as he commended the detail to the general public with wrongs to right, and to the legal profession with salaries to pay and overheads to cover.

The interesting changes came in the income eligibility. Applicants with a disposable income above 10,995 would now be considered for legal aid, albeit assessed for a personal contribution of 1/2 the difference between 10,996 and 15,000.

Applicants with a disposable income above 15,001 would be assessed for a 100 per cent contribution of the difference between 15,001 and 25,000. Effectively, that would be an interest-free loan, but allowing the applicant to stay in the game whether pursuing or defending an action.

Has it made any difference in practice? "We estimated that the changes would generate around 1,700 additional applications in a full year," says Montgomery. "We seem to be on track for that with 804 in process so far, and at no net additional cost to the fund."

The SLAB has three forms of revenue from the cases it funds. "Contributions from Assisted Persons" has traditionally been the least of the three, at 1m or so. The others are clawback from winnings ("Amounts Awarded to Assisted Persons") and "Expenses From Opponents" following successful legally aided cases. The latter is the largest at over 8m in 2008-9, though that was 20 per cent down on the previous year.

Perhaps the more significant innovation was the decision to fund organisations across Scotland to provide in-court assistance, advice and support, with the aim of slowing the litigation train before it could pick up speed, or even halt it altogether.

SLAB figures have shown a relentless annual decline in the number of firms engaging in civil legal aid work. One in six firms dropped off the SLAB list between 2003-4 and 2008-9.

Robertson says: "The upset and the cost of litigation has in the past been concentrated at the end of the process, where cases prepare for proof. The grant scheme is part of a package of measures to be funded from an additional 3m provided by the Scottish Government as part of its response to the recession and the increasing number of debt and repossession cases. What these agencies can do is intervene at the earliest stages of the process to see what can be resolved, often without going to court."

Sixteen agencies and partnerships have been funded to the tune of 2m until March 2011.

The biggest grant of 322,000 went to a Tayside consortium lead by Shelter Scotland while the smallest, 52,000, went to Ross and Cromarty CAB.

Fife Partnership of Legal and Advisory Agencies were awarded 168,000. Co-ordinator Billy Lynch says the project has been a real shot in the arm for their ability to provide advice and intervention that is free at the point of need. That's enough to fund a full-time in-court adviser covering the Fife courts, a full-time money adviser and a part-time solicitor.

Lynch says: "We aren't in competition with local solicitors. It's not financially viable for most of them to take on civil cases that are low-level in the bigger picture, but for the family or individual involved are the difference between staying in their home and being evicted."

The in-court part of the service often picks up the case at the 11th hour when a problem has already developed into a crisis. "We might meet them on the day they have a proof for an application for eviction against them. We are aware of 100 section-11 notifications seeking eviction a month across the Fife courts.

"If it's mortgage arrears, we can get the parties to consider a mortgage-to-rent conversion or a shared equity. We can negotiate with a housing association or private landlord about arrears. It's often the case that a private landlord is just as much at sea with the legal process as the tenant, so we can do a bit of education with them in passing. Not everybody acts on the advice we give, but I think a lot of people are still in homes they would have lost and at least have a chance of getting out of the crisis they're in because of the service. But we often pick up other legal issues that we can refer to a solicitor. It's a two-way street with the profession."

Lynch also says sheriffs and court staff have tuned in to the project. "We've built up good relations so that when we turn up in court with one case file for the morning, the court staff run up and say, 'We've got another 15 here you should take a look at.'"

It may not be often in the legal process that a plan survives such contact with reality. Robertson says: "I've never placed much store in the saying that 'if it ain't broke, don't fix it'. Being 'not broken' doesn't mean it's up-to-date. Life isn't getting less complex for our citizens and their needs and expectations are constantly changing. We have to aspire to supporting more and better access to justice at proper cost."