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Revised Funding Code

My Lords, I recognise the understandable concerns of the right reverend Prelate, but I hope that in the course of my brief speech I will be able to reassure him. I am grateful to noble Lords who have taken part in this short debate. I will attempt to answer all their questions and, if I miss any, I will arrange for letters to go out tomorrow. The noble Lord, Lord Henley, asked whether there was an Explanatory Memorandum. My understanding is that it was laid before the House with the code. I will ask officials to investigate this with the Printed Paper Office and will write to the noble Lord. He also said that he is looking forward to debating the regulations on legal aid reform in due course. I am sorry to disappoint him, but on a point of clarification, the regulations which implement the new fee schemes are considered under the negative resolution procedure, as set out in the Access to Justice Act 1999. This has always been the case. As well as making a very interesting commentary on the code, the noble Lord, Lord Thomas of Gresford, asked a number of questions. He asked whether the legal aid representative bodies supported the removal of residential assessments because that money will go to lawyers. We believe that the Legal Aid Fund must be focused on legal representation. However valuable these assessments may be, they are not legal expenses and it is therefore inappropriate for them to be funded in this way. The noble Lord also asked how much legal aid is spent on residential assessments. I hope finally to be able to give him an answer that might partially satisfy him. Since 2005, the Legal Services Commission has been collecting information on residential assessments where it has received a request for prior authority from the solicitor to guarantee the expense. However, this is not a mandatory requirement, so the picture is incomplete. Based on the data collected, the LSC estimates that the cost to legal aid of residential assessments is at least £1 million a year. The LSC is undertaking a review of expert costs which include residential assessments in care proceedings. The review covers over 12,000 files where the bills were submitted between April and June 2007. The final figures are expected later this year and will be available to noble Lords. The noble Lord also argued that removing residential assessments from the scope of the fund means that they will not be done and they are very valuable. It is only recently that these costs have fallen to the Legal Aid Fund, since the decision in a case in May 2005. This amendment restores the position to what it was prior to 2005. The noble Earl, Lord Listowel, asked a number of questions which touched on some points raised by the noble Lord, Lord Thomas of Gresford. The Government recognise the importance of work that centres such as the Cassel hospitals do. Consultees told us that such assessments can be useful in appropriate cases. However, the view of the Legal Services Commission and legal aid experts such as the Legal Aid Practitioners Group and the Law Society is that, while these assessments may have therapeutic benefits and may provide protection for the child, they are not a form of legal representation and the costs should not fall to the limited Legal Aid Fund. It is simply not correct to interpret the Government’s position as being that, because we argue that they should not fall to legal aid, we do not believe that they are important. It may reassure noble Lords to know that there is no question of legal aid being removed from community-based assessments, which will continue to be funded as they currently are. Most noble Lords also asked if this change could deny children much needed assessment. I reassure them that the change that we are introducing will not mean that children are denied assessments. Local authorities have a duty to children in need under the Children Act 1989 and will commission as necessary any assessment that is needed in a residential unit because of child protection concerns. If a local authority does not undertake an assessment where one is necessary, the court can order a residential assessment where appropriate. Noble Lords also asked who will pay for residential assessments if they are not paid through legal aid. This is not a new financial burden for local authorities, which have always paid for these assessments as part of their duty to protect children in need. Recently, however, as I have explained, these costs have increasingly fallen to the Legal Aid Fund. There must be legal aid to pay for legal representation for the vulnerable, and, I say again, residential assessments form no part of legal representation. Where rehabilitation with a family is possible following such an assessment, this may obviate the need for a care order and the costs arising from the local authority’s continued involvement with the child. I hope that I have answered most of the questions that have been asked. I confirm that my colleague Ivan Lewis is looking into the funding of the Cassel hospitals, which I hope reassures the noble Earl. I also hope that I have provided reassurance that children will not be adversely affected by this change. On Question, Motion agreed to.