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 phe-nomenon, 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 an-nounced 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 oppor-tune 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 con-sidered, 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 per-ceived by the Minister of State for Security and Justice.

* Mies Westerveld is Professor of Legal Aid by special appointment at the University of Amster-dam.

1 http://jaarverslag.raadvanstate.nl/downloadattachment.aspx?intLSAttSetId=128. The term ‘Viceroy of the Netherlands’ is frequently applied informally to the Vice-President of the Coun-cil of State, the Dutch government’s most senior advisory body. (The monarch is titular Presid-ent of the Council.)

2 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.

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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 Adminis-trative 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 al -ways 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 un-reasonable 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 dis-tinction between the public service provided free of charge by the Legal Ser-vices Counter (Het Juridisch Loket), which replaced the old Legal Aid Bureaux (Bureaus voor Rechtshulp), and the professional services of lawyers and medi-ators (hereafter: legal service providers). The latter are paid a fee by the govern-ment 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 Ser-vices 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 prob-lem 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 meritori-ous 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 not mean that the service is free of charge. In almost all legal aid cases, 5 a per-sonal 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 Married/cohabiting persons

3 European Court of Human Rights (ECtHR), Kreuz v. Poland, judgment of 19 June 2001, 28249/95.

4 For the background to this change, see Huls 2003.5 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.

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and single parentsAnnual taxable income Personal

contributionAnnual taxable income

Up to € 17,700 € 129 Up to € 24,800€ 17,701 - € 18.400 € 188 € 24,801 - € 25,700€ 18,401 - € 19.400 € 305 € 25,701 - € 27,000€ 19,401 - € 21.300 € 516 € 27,001 - € 30,100€ 21,301 - € 25.200 € 796 € 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 in-come 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 ‘mul-tiple 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 un-fair dismissal case. Deviations from the standard tallies in favour of the service provider are permitted when they can demonstrate that a particular case de-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 drastic-ally, 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 ap-plication 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

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Every Little Helps? Approaches to Multiple Claimants as Part of the Legal Aid Dilemma

would have had led to both having their payments cut. The pair launched separ-ate 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 respons-ibility 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 monitor-ing the system’s quality and fairness, whilst at present approximately € 400 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 certi-ficates issued (bottom) in the past five years.

Legal Aid spending (in millions of euros)

Number of legal aid certificates issued

6 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 em-powered 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.

7 Monitor gesubsidieerde rechtsbijstand (Subsidised legal aid monitor). This has been published annually since 2004.

8 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.

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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 con-cern for some considerable time.10 In 2007, the coalition agreement establishing 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 unneces-

9 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.

10 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.

11 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.

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Every Little Helps? Approaches to Multiple Claimants as Part of the Legal Aid Dilemma

sarily. 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 settle-ments ‘before mutual trust changed to mutual distrust’, as Albayrak put it. The government should only come into the picture once cases became more com-plex or major social or financial interests were at stake.12 But it, too, had to be-come 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 cla-rify 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 tele-phone call, for instance, rather than sending them often incomprehensible let-ters.

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 every-one – 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 strengthen-ing 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

12 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.

13 See Legal Aid Board 2013, p. 8. Preliminary provision: Roadmap to Justice (Rechtwijzer).14 For more on this see the memorandum dd. 10 July 2012 from the Minister of Justice. Kamer-

stukken II 31753, no. 52.6

Chapter 5

to public or civil cases. Article 6, clause 3, of the European Convention on Hu-man 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 with-in 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 con-tribution: members of the public facing a complex of legal problems, one after the other. In the submission letter accompanying the report Van duur naar du-urzaam (‘From dear to durable’), this group is mentioned twice. Under the head-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 preven-ted 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 in-creases significantly. That is due to a rather unfortunate characteristic of the LAA, which was also highlighted in the 2008 analysis: it is ‘highly individual-istic 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 straightfor-wardly: 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 15 ECtHR, Airey v. Ireland, judgment of 9 October 1979, C 6289/73.16 Path to Justice Study, WODC 2004. This is to be repeated a year after the submission letter is

issued (WODC 2010).17 Submission letter of 24 October 2008, p. 6.

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Every Little Helps? Approaches to Multiple Claimants as Part of the Legal Aid Dilemma

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 relation-ship 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’ recipi-ents of legal aid. We can therefore state that the issue of multiple claimants ac-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 pur-poses 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 recipi-ents 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 memor-andum to Parliament, reduce the number of legal procedures they are em-broiled in.21 For their work over the year, the LCM receives a multiple or um-brella 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 ap-pointing 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 18 Submission letter of 24 October 2008, p. 14.19 Legal Aid Board 2013, p. 24.20 Source: interview with Ms A. Appels, pilot co-ordinator, Legal Aid Board.21 Memorandum of 4 May 2012 from the Minister of State for Security and Justice, Kamerstukken

II 2011-2012, 31753, no. 51, p. 6. 22 WNSP administrators are court-appointed professionals who supervise debt restructuring

plans for private individuals. They report and are answerable to the official receiver. 23 Memorandum dd. 4 May 2012 from the Minister of State for Security and Justice, p. 7.8

Chapter 5

task ties in with their established ‘gatekeeper’ function and with the govern-ment’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 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 Roer-mond 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 excep-tion is the one in Roermond, who says that that ‘is not really the case at the mo-ment’ 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, attach-ment 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 signific-ant loss of income has not been adequately offset by an increase in disability benefit and where attachments of earnings have exceeded the legal limit, ‘leav-ing 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 de-scribed 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

24 Source: interview with Ms A. Appels, pilot co-ordinator, Legal Aid Board.25 This is the form on which the Legal Services Counter worker describes the nature of the prob-

lem, the reasons for its referral and what action probably needs to be taken.9

Every Little Helps? Approaches to Multiple Claimants as Part of the Legal Aid Dilemma

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 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 proceed-ings 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 doc-ument. 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 solu-tions. 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 pro-fessionals recruited as its LCMs are all experts in debt and its causes. The refer-rals 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 another and then another, and so on. But for them the need to draw heavily

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.

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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 perman-ent 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’ men-tioned above raises another question, which deserves the attention of policy makers. This question not only concerns the most suitable approach of a prob-lem, 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 any-one 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 supra-institu-tional approach would seem to hold out more hope of being effective than nar-rowing the options available to heavy use of the LAA and, by extension, of the new-style multiple certificate. This broad approach would enable service pro-viders 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 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 prin-ciple 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.

11