Chapter 5
EVERY LITTLE HELPS?
Approaches to Multiple Claimants as Part of the Legal Aid Dilemma
Mies Westerveld*
1.
Introduction
The Dutch system of subsidised legal aid is under fire. This is not a new phenomenon, and legal aid is not the only target. In the 2012 annual report of the
Council of State, the nation’s supreme legal advisory body, its Vice-President,
Piet Hein Donner, the so-called ‘Viceroy of the Netherlands’, effectively announced the end of the welfare state as we now know it. 1 And a year earlier the
Minister of State for Security and Justice suggested that the current system of
legal aid was no longer tenable. In some ways, then, this book comes an opportune moment, and in some ways it does not. This is the right time because we
can already hear the rumbling of the approaching thunderstorm, but it is also
premature because we cannot yet be sure where and how the storm will break.
My contribution concerns the tenability of the system, the question of where its
major costs lie and the measures, which have been taken, or are being considered, to rein in that expense. I pay particular attention to one specific issue,
which is quite frequently cited as undermining the basic purpose of subsidised
legal aid: assuring ordinary citizen access to the law. That is the fact that almost
a fifth of all legal aid ‘certificates’ issued in the Netherlands go to only 4 per
cent of legal aid consumers,2 the so-called ‘multiple claimants’. These are either
people who face legal problems on a regular or systematic basis or individuals
who suddenly encounter numerous such problems simultaneously. Before I go
into the phenomenon of multiple claimants in greater detail, however, I shall
first provide a brief outline of the system itself and the policy challenges as perceived by the Minister of State for Security and Justice.
*
1
2
Mies Westerveld is Professor of Legal Aid by special appointment at the University of Amsterdam.
http://jaarverslag.raadvanstate.nl/downloadattachment.aspx?intLSAttSetId=128. The term
‘Viceroy of the Netherlands’ is frequently applied informally to the Vice-President of the
Council of State, the Dutch government’s most senior advisory body. (The monarch is titular
President of the Council.)
Source: WODC (Scientific Research and Documentation Centre), 2010. A legal aid certificate is
a declaration that the legal work it describes will be subsidised by the state. The consequences
of the issuance of such a certificate are discussed later in this paper.
1
Every Little Helps? Approaches to Multiple Claimants as Part of the
Legal Aid Dilemma
2.
The Legal Aid Act in Brief
In the Netherlands, the government’s duty to provide those of limited means
with access to justice in general and the courts in particular is enshrined in the
Legal Aid Act (Wet op de rechtsbijstand; hereafter LAA), the General Administrative Law Act (Algemene wet bestuursrecht) and the Civil Court Fees Act
(Wet griffierechten burgerlijke zaken). The first of these provides for affordable
legal aid for this group, whilst the other two establish an income-related system
of court fees in the public and civil sectors, respectively. In highlighting the
LAA, though, it should be pointed out that ‘access’ and ‘legal aid’ do not always go hand in hand. Research shows that members of middle-income groups
are less likely to use the services of a lawyer than recipients of legal aid, and
that the cost factor is an important reason for this. This echoes the situation in
the case of Kreuz v. Poland, concerning a relatively prosperous businessman for
whom the level of the court fees in a civil case nonetheless represented an unreasonable barrier to justice.3 When considering the theme of multiple legal aid
claimants, however, the focus upon the LAA is defensible. After all, ordinary
members of the public facing a variety of legal problems are more likely than
not to be entitled to legal aid.
Since a round of amendments in 2000-2002, the LAA has drawn a clear distinction between the public service provided free of charge by the Legal Services Counter (Het Juridisch Loket), which replaced the old Legal Aid Bureaux
(Bureaus voor Rechtshulp), and the professional services of lawyers and mediators (hereafter: legal service providers). The latter are paid a fee by the government for their legal aid work, which can be classified as a subsidy – hence the
term ‘subsidised legal aid’. Members of the public can contact the Legal Services Counter for information, straightforward legal advice and, if necessary,
referral to a legal or paralegal professional, but it does not provide advocacy or
representation services. That avenue, which used to be available from the Legal
Aid Bureaux, was ended under the reforms of 2000-2002.4
To emphasize the difference, the work of the Services Counter is referred to
as legal assistance, whereas that of lawyers and mediators is called legal aid. The
terms ‘first-line’ (assistance) and ‘second-line’ (aid) are sometimes used, too,
although that distinction is not always appropriate. A person with a legal problem can also approach a lawyer directly, and they may then obtain a legal aid
certificate for their work as long as the matter is deemed sufficiently meritorious to qualify. Once such a certificate has been issued, the client is officially
designated as a ‘justice seeker’ under the provisions of the LAA. But that does
3
4
2
European Court of Human Rights (ECtHR), Kreuz v. Poland, judgment of 19 June 2001,
28249/95.
For the background to this change, see Huls 2003.
Chapter 5
not mean that the service is free of charge. In almost all legal aid cases, 5 a personal contribution is required. The exact amount is based upon the justice seeker’s income. In part, this arrangement is intended to deter frivolous claims on
the system: like any paying client, justice seekers on legal aid are expected to
ask themselves whether the costs of pursuing their actions are worth it.
The table below shows the levels of personal contributions in 2013.
Single persons
Annual taxable income
Up to € 17,700
€ 17,701 - € 18.400
€ 18,401 - € 19.400
€ 19,401 - € 21.300
€ 21,301 - € 25.200
Personal
contribution
€ 129
€ 188
€ 305
€ 516
€ 796
Married/cohabiting persons and
single parents
Annual taxable income
Up to € 24,800
€ 24,801 - € 25,700
€ 25,701 - € 27,000
€ 27,001 - € 30,100
€ 30,101 - € 35,600
As well as income, assets are also taken into account. Regardless of their annual
earnings, a person with assets worth more than € 21,139 does not qualify for
legal aid. In calculating these figures, the situation over the past two years is
considered unless there has been a sharp rise or fall in either assets or income,
or both. A fall may work out in the applicant’s favour, since they could still
qualify as a justice seeker. On the other hand, an increase in assets and/or income might prove detrimental in that the legal aid certificate is withdrawn. In
the latter case, the former justice seeker becomes an ‘ordinary’ client and has to
pay his service provider a fee at least equal to the subsidy, which would have
been received from the Legal Aid Board. It is not inconceivable that the client
may even have to pay the full commercial rate, although all parties must have
agreed to this beforehand.
The personal contribution is payable on each certificate. Until very recently
there was a discount scheme for justice seekers who applied for legal aid three
or more times in any given year, but this facility for multiple claimants has been
abolished with effect from 1 July 2013. The plans to introduce a so-called ‘multiple certificate’, which will be discussed below, played a part in this change.
The legal service provider is paid a fixed fee for his work, calculated using a
points system. A divorce case, for example, is worth ten points. Seven points are
awarded for an application to change an alimony ruling, and eleven for an unfair dismissal case. Deviations from the standard tallies in favour of the service
provider are permitted when they can demonstrate that a particular case de-
5
The exceptions include persons who have legally deprived of their freedom, such as prison
inmates and psychiatric patients being held in a secure institution under a court order. The victims of serious violent or sexual crimes also qualify for free legal aid, regardless of their income.
3
Every Little Helps? Approaches to Multiple Claimants as Part of the
Legal Aid Dilemma
manded at least triple the normal amount of time required. Conversely, fewer
points than normal are awarded when the case relates directly to another for
which a certificate has already been issued – for instance, a dismissal from work
that results in a reduction of unemployment benefit entitlement. More drastically, it may be ruled that the work covered by a certificate application falls within
the scope of another certificate already issued. In that case, the new application
is rejected and the service provider must carry out the work described in it
without receiving any additional payment.
One recent example of such a ‘scope’ case concerns the wife of an asylum seeker
suspected of war crimes. Each partner was individually seeking refugee status
and their two cases could have had different outcomes, but their underlying arguments were deemed to be so similar that their lawyer was required to handle
both cases under a single certificate. Another such case involved two recipients
of state benefits, whose local authority claimed were cohabiting. This would
have had led to both having their payments cut. The pair launched separate appeals against this decision, but again it was ruled that the underlying facts of
the cases were the same and so the lawyer would have to pursue both on the
same certificate.
Administration of the system is entrusted to the Legal Aid Board (Raad voor
Rechtsbijstand). As well assessing applications for legal aid certificates, setting
the fees payable under them and making the actual payments, this body also
makes agreements with service providers and, insofar as that is not the responsibility of other organisations, regulates their work. 6 Its other tasks include
means-testing applicants for legal aid and, in more general terms, ensuring that
enough service providers are available throughout the country and overseeing
the effective spending of the funds made available for legal counsel and legal
aid. It reports annually to the Minister of State for Security and Justice on all
these activities, in the form of a published ‘monitor’.7
The Dutch system of legal aid makes huge demands on the public purse.
The Legal Services Counter scheme alone costs the taxpayer the best part of € 24
million a year. About the same amount is spent on overheads and on monitoring the system’s quality and fairness, whilst at present approximately € 400
6
7
4
Lawyers, for instance, the principal recipients of legal aid payments, are regulated primarily by
the Dutch Bar Association (Nederlandse Orde van Advocaten, NOvA). This body is empowered to take disciplinary action against them, and so in their case the remit of the Legal Aid
Board is confined to monitoring compliance with quality standards and investigating cases of
suspected subsidy fraud.
Monitor gesubsidieerde rechtsbijstand (Subsidised legal aid monitor). This has been published
annually since 2004.
Chapter 5
million is paid out in actual subsidies to lawyers and mediators.8 But perhaps
even more revealing than the current figures is their evolution in recent years.
The diagrams below show spending on legal aid (top) and the number of certificates issued (bottom) in the past five years.
Legal Aid spending (in millions of euros)
Number of legal aid certificates issued
Categories: Asylum, Criminal (standard certificates), Criminal (special certificates), Civil and public.
Criminal cases, under both standard and special arrangements,9 account for
approximately 40 per cent of all certificates issued. In the category ‘civil and
public law’ (purple), just over 30 per cent of certificates are for divorce cases.
3.
2008-2013: From Savings to a New Approach to Access to Justice
The ever-increasing cost of the legal aid system has been causing the state concern for some considerable time. 10 In 2007, the coalition agreement establishing
8
9
From: memorandum dd. 1 March 2013 from the Minister of State for Security and Justice.
Kamerstukken II [Parliamentary papers II], 31753, no. 57. The total costs for the 2013 calendar
year are estimated at more than €470 million.
Special certificates are issued by judges on behalf of, amongst others, criminal suspects being
held in custody. See also note 6 above. Standard certificates are issued on request to persons
facing criminal prosecution who are not being held in custody.
5
Every Little Helps? Approaches to Multiple Claimants as Part of the
Legal Aid Dilemma
the fourth Balkenende government (2007-2010) cut its budget by € 25 million in
2008 and a further € 50 million per annum thereafter. To achieve these targets,
Minister of State for Justice Albayrak appointed a ‘Guidance Group’ to analyse
the system’s efficiency and effectiveness. This body organised several rounds of
consultations before concluding, based upon the information they elicited, that
there was too great a policy emphasis upon access to lawyers and the courts
and not enough focus upon resolving legal problems. The Guidance Group
called for better pre selection of the issues qualifying for legal aid and for a
search for appropriate means to encourage both the government and members
of the public to find alternative ways to resolve disputes, and preferably to
avoid them in the first place.11 These recommendations found a sympathetic ear
in Albayrak, who then developed them into a number of concrete measures. An
example of this is the introduction of a positive incentive to stimulate use of the
Legal Services Counter route, in the form of a small financial benefit for the
justice seeker. This measure was designed to strengthen the Services Counter’s
‘gatekeeper’ role at the point of access to the legal aid system, with its advisory
and referral policy ensuring that cases do not enter that expensive mill unnecessarily. In addition, the personal contribution was reduced for justice seekers
who accept mediation rather than pursuing litigation. In this new system, the
claimant was made more responsible for resolving conflicts and reaching settlements ‘before mutual trust changed to mutual distrust’, as Albayrak put it.
The government should only come into the picture once cases became more
complex or major social or financial interests were at stake. 12 But it, too, had to
become more aware of its own responsibility for the spiralling legal aid budget.
Under the acronym PAGO (short for ‘proactieve geschiloplossing’, or proactive
conflict resolution), a programme was launched to make the administration of
public law more proactive – through the appointment of so-called Directing
Judges (‘Regierechters’), charged with summoning the parties to a case to clarify the underlying facts at an early stage and so, if at all possible, settle it there
and then – and to make the staff of public bodies more aware of how to prevent
conflicts: by responding to complaints from members of the public with a telephone call, for instance, rather than sending them often incomprehensible letters.
10
11
12
6
This is not a new phenomenon. In the 1980s, concern about the rising cost of the legal aid
budget led to the introduction of the personal contribution. This measure generated a lot of resistance at the time, particularly from legal aid lawyers (‘Expensive law is no law’). Nowadays,
the contribution is generally accepted as an incentive not to pursue frivolous claims and only
prompts protest when a proposed increase threatens to make it unaffordable.
Regiegroep Programma Duurzame en Toegankelijke Rechtsbijstand (Guidance Group for the
Sustainable and Accessible Legal Aid Programme) 2008. This body’s recommendations are
based upon the findings contained in a position paper compiled by the Tilburg Institute for Interdisciplinary Studies of Civil Law and Conflict Resolution Systems.
Submission letter of 24 October 2008 from the Minister of State for Justice, accompanying the
advisory report Van duur naar duurzaam. Kamerstukken II 2008/09 31753, no. 1.
Chapter 5
To support ordinary people with the greater responsibility entrusted to
them under these reforms, the Legal Aid Board commissioned the development
of a number of online tools to help them use the law themselves. These were
placed on the Board’s website, where they are available free of charge to everyone – not just justice seekers under the official definition.13
Late in 2012, however, with all these measures barely in place, the second
Rutte government announced a new round of savings on legal aid. How this
latest target – a cut of € 100 million to a budget already less than € 500 million –
is to achieved had yet to be determined at the time of writing. What is known is
that the proposal has encountered widespread resistance and that the only
measure upon which all the parties consulted can agree is a further strengthening of the Legal Services Counter’s ‘gatekeeper’ role.14 For the government, this
has the advantage that the budget for that service is fixed. An increase in the
demand for counsel may well result in waiting lists, or even in legal questions
remaining unanswered, but it will not lead to a further increase in the legal aid
budget.
4.
Vulnerable Groups and Access to Justice: the Multiple Claimant
Phenomenon
The current approach, with its emphasis upon greater individual responsibility
and self-reliance, overlooks two particular groups. The first are people facing
criminal prosecution. In terms of conflict resolution, they have little choice: it is
entirely up to the other side in their case, the prosecution service, whether it
comes before the courts. Moreover, they are in a special position in that their
entitlement to legal aid is more strongly anchored in law than that of the parties
to public or civil cases. Article 6, clause 3, of the European Convention on Human Rights (ECHR) states explicitly that those charged with a criminal offence
have the right to legal assistance, free of charge if necessary. In civil cases, it has
been established that – subject to certain conditions – this same right falls within the definition of a ‘fair hearing’ found in Article 6, clause 1, of the ECHR, 15
but for the justice seeker it is still a right less solid than for the criminal suspect.
At the same time, as we have seen, the criminal law makes particularly heavy
demands upon the legal aid budget and so any nominal saving which spares
this domain saddles the others with an unreasonably heavy burden.
The second group for whom the appeal to assume personal responsibility
can be somewhat problematic is the category referred to in the title of this contribution: members of the public facing a complex of legal problems, one after
the other. In the submission letter accompanying the report Van duur naar duurzaam (‘From dear to durable’), this group is mentioned twice. Under the head13
14
15
See Legal Aid Board 2013, p. 8. Preliminary provision: Roadmap to Justice (Rechtwijzer).
For more on this see the memorandum dd. 10 July 2012 from the Minister of Justice. Kamerstukken II 31753, no. 52.
ECtHR, Airey v. Ireland, judgment of 9 October 1979, C 6289/73.
7
Every Little Helps? Approaches to Multiple Claimants as Part of the
Legal Aid Dilemma
ing ‘Vulnerable groups’, the following comment is made: ‘The government
realises that it is not always easy for all justice seekers to find a solution to their
problem, and that not all members of the public are able to assert their position
in the legal process.’ To explain, reference is made to the 2003 Path to Justice
Study. This revealed that about two-thirds of the entire Dutch population had
encountered at least one civil or public legal problem over a five-year period. Of
them, 44 per cent had called in expert help and 46 per cent had resolved the
issue themselves. However, the remaining 10 per cent had neither made contact
with the other party nor sought assistance. The researchers concluded that it
was not so much the financial implications that deterred this ‘passive’ group
from taking action as a lack of social and communication skills, which prevented them from standing up effectively for their own rights. 16 The submission
letter concurs with this analysis, and upon that basis goes on to describe those
concerned as ‘a variegated group, characterised by poor education, long-term
unemployment, illiteracy, low incomes and limited self-reliance’. The negative
repercussions of this combination of factors can include social alienation and
reduced community participation. ‘To prevent this happening,’ Albayrak stated
in 2008, ‘it is important that there be easy access to supportive facilities like the
Legal Services Counter and social counsellors.’17
But this group can be problematic for another reason, too. As soon as its
members do find their way to the legal aid system, pressure on the budget increases significantly. That is due to a rather unfortunate characteristic of the
LAA, which was also highlighted in the 2008 analysis: it is ‘highly individualistic and case-centred’. Because of this, the common factors in different legal
problems can be pushed into the background, resulting in ‘the same underlying
complex of facts being raked up time and again’. Or, to put it more straightforwardly: for this type of problem or this type of justice seeker, the LAA regime is
a relatively inefficient. Nor is the justice seeker particularly served by a purely
case-centred approach. After all, ‘the implicit assumption [in the LAA] that
every legal problem stands in isolation, with the result that each is dealt with
more or less separately by the legal aid provider, in no way reflects the justice
seeker’s own reality. For them, there are often obvious connections between
their various problems and legal disputes.’18 Cited as an example is the relationship between cases concerning parental access, alimony, the division of marital
assets and the termination of a rental agreement.
What is striking about the analysis, and the example provided, is the type of
related legal problems highlighted. These do not so much affect the ‘passive’
group mentioned in the Path to Justice Study but rather the ‘mainstream’ recipients of legal aid. We can therefore state that the issue of multiple claimants ac16
17
18
8
Path to Justice Study, WODC 2004. This is to be repeated a year after the submission letter is
issued (WODC 2010).
Submission letter of 24 October 2008, p. 6.
Submission letter of 24 October 2008, p. 14.
Chapter 5
tually has two sides to it. On the one hand there are the vulnerable groups, who
tend not to show up ‘on the radar’ of legal service providers, but on the other
there are also ‘ordinary’ people whose particular situation simply generates one
legal aid certificate after another. It is this group of so-called ‘heavy users’ that
the current Minister of State for Security and Justice, Fred Teeven, has been
seeking to target through the experiment with ‘multiple certificates’ (MCs, also
known as ‘umbrella certificates’) launched in May 2012.
5.
The Multiple Certificate Pilot: Structure and Preparations
The MC pilot project, also known as the ‘multi problems experiment’ (LAB,
2013), has a duration of one year, beginning in May 2012 and ending in May
2013, and focuses upon justice seekers with multiple legal issues. 19 For the purposes of the pilot, they are defined as ‘individual clients facing a number of
legal problems, at least one of which is financial in nature’.20 Qualifying recipients are allocated a legal case manager (LCM), who supports them in dealing
with all the legal and social issues they face for a period of up to one year. The
aim of this arrangement is to find a lasting solution to the underlying causes of
the subject’s problems and so, it is hoped, according to Teeven in a memorandum to Parliament, reduce the number of legal procedures they are embroiled
in.21 For their work over the year, the LCM receives a multiple or umbrella legal
aid certificate, entitling them to payment on a fixed-fee basis. These case managers are drawn from the ranks of Personal Debt Restructuring Act (Wet
schuldsanering natuurlijke personen, WNSP) administrators,22 since many of
the problems in question are either debt-related or likely to result in debt. If
evaluation of the pilot shows that it has been successful, the possibility of appointing other service providers as LCMs – and the costs involved – will be
investigated.23
Before the pilot began, talks were held with the directors of the local Legal
Services Counters. This is because they have been assigned a crucial role in the
process, as referring bodies and hence also as early indicators of demand. This
task ties in with their established ‘gatekeeper’ function and with the government’s policy to further develop that. Three regions were selected for the pilot:
one urban (Dordrecht), one rural (Roermond) and one a combination of the two
(Emmen). In all three, information sessions were organised for Legal Services
Counter staff to prepare them for their new referral task. Next, the Legal Aid
Board made contact with WNSP administrators with whom it already had a
19
20
21
22
23
Legal Aid Board 2013, p. 24.
Source: interview with Ms A. Appels, pilot co-ordinator, Legal Aid Board.
Memorandum of 4 May 2012 from the Minister of State for Security and Justice, Kamerstukken II
2011-2012, 31753, no. 51, p. 6.
WNSP administrators are court-appointed professionals who supervise debt restructuring
plans for private individuals. They report and are answerable to the official receiver.
Memorandum dd. 4 May 2012 from the Minister of State for Security and Justice, p. 7.
9
Every Little Helps? Approaches to Multiple Claimants as Part of the
Legal Aid Dilemma
good working relationship. These professionals also received instruction in
their new role, which included being told that they could always refer their
client on to a lawyer if they were in any doubt about the case.24
At the time of writing, the pilot is still under way. Moreover, it has only attracted a very limited number of participants. A total of 25 cases are currently
known to me, thirteen of them in Dordrecht, eleven in Emmen and just one in
Roermond. Nonetheless, from the initial details available it is already possible
to draw some tentative conclusions. I have based these upon information provided by Ms Appels, the co-ordinator of the pilot, and found in the ten case files
made available to me (Emmen cases 1-5, Dordrecht cases 6-9 and Roermond
case 10).
6.
First Results
When asked whether the case referred to them is indeed one involving multiple
legal problems, nine of the ten LCMs answer in the affirmative. The only exception is the one in Roermond, who says that that ‘is not really the case at the
moment’ but that it is clear that a problematic debt situation could easily arise if
action is not taken now.
Amongst the complex problems described are: ‘debt issues, constant threats
from creditors and imminent danger of disconnection of gas and electricity’
(Emmen, case 1); ‘attachment of earnings, so that client can no longer pay rent
and so faces eviction (again)’ (Emmen, case 2); ‘unpaid child support, attachment of earnings and, in a panic, resignation from work’ (Emmen, case 3); and
‘a combination of debt issues, an as yet unresolved division of marital assets
and alcohol addiction’ (Dordrecht, case 8).
Also mentioned as legal or related problems are a case in which a significant loss of income has not been adequately offset by an increase in disability
benefit and where attachments of earnings have exceeded the legal limit, ‘leaving clients nowhere to turn’, added to which are ‘all the extra costs they are
being charged by bailiffs’ (Emmen, case 5). Asked whether there are multiple
problems, the LCM is this case comments laconically, but tellingly, that ‘everything is linked to everything else’.
None of the LCMs in question have felt the need to refer their client to a
lawyer. In this respect, the case of the resignation ‘in a panic’ (Emmen, case 3) is
an interesting one. In the referral document, 25 the legal problem here was described as follows: ‘Client faces yet another attachment of earnings. Client is in
panic and has resigned from work. Client wants help and does not know where
to start.’ According to the referring Legal Services Counter worker, the normal
route in a case like this would be referral to a lawyer ‘in order to try – through
24
25
10
Source: interview with Ms A. Appels, pilot co-ordinator, Legal Aid Board.
This is the form on which the Legal Services Counter worker describes the nature of the problem, the reasons for its referral and what action probably needs to be taken.
Chapter 5
the courts, if necessary – to overturn the resignation on the grounds that the
employer had not advised the client of the likely repercussions of leaving his
job of his own accord (voluntary unemployment), etc. However, legal proceedings do nothing to improve the atmosphere at work, and in the end often result
in dismissal anyway.’ Instead, the Legal Services Counter worker called the
employer directly and gained the impression that he was ‘not unwilling’ to
disregard the resignation ‘as long as something was done genuinely to help the
client’. The reason for that qualification was that the employer had ‘too often
become bogged down in the bureaucracy which reigns in the world of debt
relief’. That observation dates from 13 September 2012. Two weeks later, the
LCM to whom the case had been referred noted as their first point requiring
action, ‘Contact employer to set aside resignation and keep the man in his job.’26
Later enquiry (April 2013) revealed that he was indeed still employed in the
same job, so the LCM’s intervention appears to have been successful.
7.
Conclusions
With an MC, the government buys a package of legal and related help for a
whole year, at a fixed price covering all the issues identified in the referral document. It is hoped that such packages will do away with the one-dimensional
nature of the current legal aid regime, with its system of payments per problem
or per case. This should enable a more holistic approach of justice seekers – or,
rather, help seekers – for whom the legal aid system can only offer partial solutions. It may well also prove a cheaper solution to linked multiple problems
than the system of payments under the LAA, with its provisions concerning the
scope of a case and the relationships between the matters covered.
The pilot has focused specifically upon debt-related problems, and the professionals recruited as its LCMs are all experts in debt and its causes. The referrals compiled by the Legal Services Counter have also homed in on this issue.
Consequently, the vast majority of the subjects selected for the pilot have been
justice seekers who find themselves in serious financial difficulty, be that due to
a lack of social resilience and/or intellectual ability or the result of external
factors such as hostile creditors, badly performing public services or simply the
current economic crisis. For this group, the WNSP administrators have proven
very well equipped to provide them with the support they needed – perhaps
even better than lawyers, even when the problems to be addressed are legal in
nature.
But none of this means that either heavy use of legal aid or the issue of
those with multiple problems has been solved in its entirety.
To take heavy use first, even people without problematic debts or related
problems can find themselves in a situation where one legal difficulty causes
26
Emmen, case 3. The other two points are an application for debt restructuring and the sale of
the client’s car to reduce his debt to its financing company.
11
Every Little Helps? Approaches to Multiple Claimants as Part of the
Legal Aid Dilemma
another and then another, and so on. But for them the need to draw heavily
upon legal aid is more often ‘incidental’ than it is ‘structural’. It is more likely to
result from a disastrous but temporary period in their lives than some permanent underlying situation. The pilot has not included such subjects, and so it
provides no answers to the question of whether it is possible to develop a more
efficient – yet still realistic – system of payment for the type of legal (or paralegal) services they require. Perhaps no such system exists, and the existing LAA
with its combination of ‘scope’ and ‘relationship’ provisions will remain the
best possible option.
As for the group facing multiple problems the ‘holistic approach’ mentioned above raises another question, which deserves the attention of policy
makers. This question not only concerns the most suitable approach of a problem, which has been extensively analysed, but also the question of the most
suitable ‘case’ or rather ‘people’s manager’. Outside the legal arena, there are
many people working with vulnerable groups, such as social workers and
counsellors. These ‘welfare professionals’ already deal, perhaps more than anyone else, with the passive 10 per cent identified in the Path to Justice Study: those
whose ‘choice’ not to engage can eventually lead to social exclusion. For this
group, more likely to be non-users than heavy users of legal aid, a suprainstitutional approach would seem to hold out more hope of being effective
than narrowing the options available to heavy use of the LAA and, by extension, of the new-style multiple certificate. This broad approach would enable
service providers working on the same theme to learn from one another’s expertise, and should also prevent professionals acting on behalf of the same client either working at odds with each other or duplicating tasks without realising it. That, too, is efficiency.
Finally, the pilot provides an interesting insight into the referral practices of
the Legal Services Counter since it has adopted the change in culture called for
in the report Van duur naar duurzaam. Again, this raises important political and
other questions. Is the Legal Services Counter worker quoted above right in
saying that mounting a legal challenge to a ‘panic’ resignation is pointless if the
workplace relationships have already been upset, and that the employer is only
prepared to co-operate if something is done about the underlying problems? Or
does such an approach represent a high-risk course, and so one potentially
damaging to the client? There is no straightforward answer to these questions.
Quite the contrary, in fact. Those who believe that rights are there to be asserted
will always find themselves pitched squarely against those who claim that the
key issue is not ‘the right’ itself, but finding a good solution to the situation at
hand. And what constitutes a ‘good’ solution is another question which can be
disputed long and hard, without ever reaching an answer agreed upon by all.
Perhaps, though, there is a parallel between these two issues: on the one
hand an approach to the subject of multiple legal aid claimants that is confined
to a single institution, with the theme narrowed to the heavy use of certificates,
and on the other a new ‘solution-driven’ methodology. Both are intended to
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Chapter 5
keep potential justice seekers out of the legal aid system and, if they do enter it,
to remove them again as quickly as possible. With the basic underlying principle not necessarily being what is good for the justice seeker but what is good for
the Minister of State for Security and Justice in the face of a policy dilemma.
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