Community legal aid clinics

Details on clinic financial eligibility expansion for 2015/16

  1. Introduction
  2. Background
  3. Summary of funding decisions to date
  4. Context for LAO's three-year clinic funding strategy
  5. A principled and practical financial eligibility expansion strategy
  6. LAO's three-year plan to expand clinic law services
  7. Implementation and moving forward

1. Introduction

This briefing note:

  • summarizes LAOs analysis and decisions regarding the funding of financial eligibility expansion for community legal clinics and student legal aid services societies (SLASS)
  • identifies outstanding questions.

LAO is distributing it because the expansion of clinic services and the investment of millions of dollars of public funds raise important questions regarding access to justice for poverty law service across Ontario. In these circumstances, it is important for LAOs decision-making to be transparent and participatory.

This is one of two briefing notes that provide further details on clinic financial eligibility funding. Please read it in conjunction with:

2. Background

The provincial government provided the funding for this clinic financial eligibility expansion in its July 2014 budget and the accompanying amendments to LAOs financial eligibility regulations.

The governments regulatory changes affect all legal aid services, including clinic law and SLASS services, and will result in a cumulative increase of almost 20 per cent in legal aid financial eligibility guidelines over three years, as follows:

  • November 1, 2014: Six per cent increase
  • April 1, 2015: Six per cent increase
  • April 1, 2016: Six per cent increase

As of May 2015, LAO had implemented the first two financial eligibility increases.

The provincial funding announcement committed more than $96M to legal aid funding over three years, as follows:

  • 2014/15: $15.3M
  • 2015/16: $31.5M
  • 2016/17: $48.8M

The provincial governments commitment has provided LAO, community clinics and others with an important opportunity to expand clinic law services over the next several years.

3. Summary of funding decisions to date

In December 2014, the LAO board committed 20 per cent of the new financial eligibility funding to clinics and SLASS. This proportion is consistent with the current percentage of funding for community clinics in LAOs budget.

3.1 First year funding (2014/15)

In March 2015, LAO announced the first year of clinic law financial eligibility funding, to be distributed as follows:

  • $2.4 million to clinics with the fewest resources per low-income person
  • $1.2 million to specialty clinics to expand test case work, systemic advocacy and client representation, and to offer new services
  • $0.6 million to Francophone and ethno-linguistic clinics, to improve client services and access to justice.

In March 2015, LAO provided direct funding to 36 clinics. This represents almost half of the provinces 76 clinics. In this round, the sums distributed to clinics at that time ranged from $86,000 to approximately $385,000. For reasons to be discussed below, LAO considers the 2014/15 clinic allocations to be an interim or provisional distribution/calculation of clinics share of ongoing financial eligibility funding. The allocations to specific clinics may be increased in 2015/16 or future years.

It is important to note that clinics that did not receive funding in the first phase of clinic service expansion will have the opportunity to receive direct funding from LAOs provincial funding initiative, thus potentially increasing the number of clinics that receive service expansion funding. This initiative is described below.

3.2 Second and third year funding (2015/16 and 2016/17)

At the time of its March 2015 announcement, LAO believed that it would be able to invest $6.3M in clinic law services in the current fiscal year (2015/16 year two). This sum represents 20 per cent of the LAOs overall 2015/16 financial eligibility funding.

LAO now believes that can accelerate its plan for clinic law funding and invest up to $10.0M in clinic/SLASS services in 2015/161. This investment will be distributed as follows:

  • $3.9 million in additional annual funding to communities that have the fewest legal clinic resources per low-income population.
  • $2.4 million to support clinics working together to expand client services at the local, regional or provincial level.
  • $2.0 million in additional annual funding for specialty clinics to expand test case work, systemic advocacy, client representation and to offer new services, potentially including employment law.
  • $1.0 million in additional annual funding for the provinces Francophone and ethno-linguistic clinics to improve client services and access to justice.
  • $0.7 million in additional funding to increase services in the provinces seven student legal aid service societies.

3.3 Permanent funding

It is important to note that the funding that has been announced by LAO to date is permanent funding. In other words, any funding received by a clinic pursuant to this strategy will be a permanent addition to a clinics base LAO funding. This funding is not time limited or project-based. It should be noted, of course, that all funding commitments made by LAO pursuant to this initiative are subject to available provincial funding.

3.4 Three-year (2016/17) funding and beyond

LAOs investment in clinic law funding represents a substantial increase in clinic and SLASS funding. An additional $10M per year in funding represents approximately a 14 per cent increase in clinic funding in 2015/16.

The provincial government has further advised LAO that it will be providing LAO with an additional $67M in funding to expand financial eligibility in 2017/18. LAO has not decided how year four funding will be allocated, other than that the base funding that a clinic received in earlier years will be maintained.

The initiatives/strategy described in this note represent LAOs plan for the first three years of clinic financial eligibility expansion (2014/15 to 2016/17). This does not mean that this funding is time-limited or that it will be reduced or reassessed after three years. Any funding provided to a clinic as part of LAOs three year clinic financial eligibility plan will be a permanent addition that clinics base funding that the clinic should assume will continue beyond the third year.

The provinces commitment to increase financial eligibility funding in 2017/18 (year four) may give LAO the opportunity to invest more than $10M per year in new clinic services in 2017/18 and beyond. LAO is not making any commitments or decisions regarding the allocation of funding over and above the current three year plan. LAO believes that it is too early to decide these issues. It is conceivable, however, that increased funding, should it become available, could be used to expand one or more of the initiatives described below. Additional funding could also be used to support a new initiative.

4. Context for LAO's three-year clinic funding strategy

LAOs financial eligibility planning decisions are influenced by their context. This context includes:

  • The provincial governments financial eligibility regulation changes and budget announcement
  • The provincial governments terms and conditions governing all of LAOs financial eligibility funding, including clinic financial eligibility funding;
    • The new funds are to be used to expand access to justice for new clients or to provide new services to clients
    • LAO has to ensure that funds that are spent. Unspent funds must be returned to the province
    • LAO must report on results/services to clients
  • The provincial governments Poverty Reduction Strategy
  • LAOs clinic Strategic Directions
  • The Association of Community Legal Clinics of Ontario (ACLCO) strategic plan
  • The submissions received from individual and groups of clinics
  • Current and ongoing clinic transformation plans
  • LAOs ongoing plans regarding local and regional service delivery
  • Financial eligibility expansion for other legal aid services
  • The 2001 clinic expansion process

The clinic financial eligibility funding process is part of a longer-term plan to expand financial eligibility for legal aid services. The provincial government has committed to a multi-year legal financial eligibility expansion plan that extends beyond the timespan of the three year process discussed here.

The new investment in clinic financial eligibility funding, while significant, is limited. The provincial investment represents an increase of approximately 14 per cent to the total clinic funding envelope in the third year. Financial eligibility funding is not, therefore, a panacea for all clinic issues or unmet legal needs.

Finally, it is important to acknowledge that LAO and the clinics have many complementary initiatives underway that address many long-standing issues in clinic law services. LAO believes that financial eligibility expansion supports, but does not displace, these important, ongoing initiatives.

4.1 Provisional principles

LAO provisionally identified a number of principles governing clinic financial eligibility in November 2014, including:

  • LAO is committed to implementing financial eligibility expansion quickly and effectively;
  • Clinic financial eligibility expansion must be directed to new client services in areas of demonstrable client need (i.e. services that a clinic was not able to provide to clients prior to being allocated the new funding);
  • Clinic financial eligibility expansion should balance the objective of directing resources to areas of greatest need with the objective of providing resources across the province;
  • LAO and clinics will need to demonstrate and report on concrete, positive results for clients;
  • LAO will consider the impact of financial eligibility expansion on racialized and vulnerable communities and on French language services; and,
  • LAO will consider innovative options or proposals that leverage or expedite the impact of new financial eligibility resources.

4.2 Summary of submissions

LAO and the ACLCO undertook an expedited consultation with all community clinics regarding principles and potential scenarios for clinic financial eligibility expansion. LAO received 56 submissions from clinics across the province. As will be discussed below, there was agreement on many but not all principles and priorities for financial eligibility expansion.

In many respects, the diversity of clinic submissions reflected the diversity of clinic and client experience across Ontario. Access to justice is experienced differently across the province. It is not surprising, therefore, that clinics had different priorities and ideas about client needs and how to promote access to justice most effectively. For example, rural/remote clinics often emphasized geographic barriers for their clients, the lack of complementary social services, and the high proportion of Aboriginal clients. Conversely, urban or suburban clinics with diverse populations or with growing populations of low-income Ontarians often emphasized the need to provide more resources to clinics that, historically, have the fewest resources per low-income person or to meet the needs of diverse communities.

4.3 Data analysis

LAOs statistical analysis is a complex undertaking. For example, some clinics disagreed with using the Low Income Measure (as opposed to LICO) as a statistical measure2. Other clinics advised LAO that the Statistics Canada data did not accurately reflect their catchment areas. Several clinics urged LAO to consider the impact of clinic efficiency or the availability of non-clinic services in its statistical analysis.

In the first round of clinic funding (March 2015), LAO used publically available data from Statistics Canada and available clinic catchment area boundaries to help identify gaps in service and compare needs across the province. LAO committed to clinics that it would work with Statistics Canada to assign low income population counts to clinic catchment areas as accurately as possible. Statistics Canada was subsequently able to provide current population figures assigned to the geographical boundaries confirmed by clinics prior to the distribution of funding.

In the second round of clinic funding (likely July 2015), LAO updated its data analysis as follows:

LAOs statistical analysis remains controversial with some clinic advocates. Unfortunately, there is no statistical tool or measure of poverty that will ever perfectly predict legal needs. LAO worked hard to ensure that the data matched catchment areas. LAO inevitably had to make judgments about statistics in order to compile the best available data to inform its analysis. Fortunately, LAOs statistical analysis was aided by several members of the clinic community and by staff from Statistics Canada, both of whom assisted LAO identify the best statistical measures available.

In the end, LAOs statistical analysis uses the number of persons in low income as a means for determining the distribution of poverty law needs across the province. LAO has used this data to better understand the gaps in poverty law services and to compare differences in access across Ontario

Of course, statistics are not the whole story. LAOs statistical analysis is one part of a more comprehensive priority setting process that also considered important principles and access issues. These issues are considered below.

5. A principled and practical financial eligibility expansion strategy

LAOs 2013 Strategic Directions paper stated that

The fundamental objective of the legal aid system and clinic law services is to meet the needs of low-income clients and their communities. Clinic law clients like all legal aid clients depend on legal aid services to ensure their access to crucial legal rights and procedures. Clients and low-income communities rely on clinic law services to protect their basic necessities of life, such as social assistance, housing, health, education and human rights. They also depend on these services to be accessible, high-quality, cost-effective and a responsible use of public resources3.

Access to justice for low-income individuals and their communities is a fundamental principle of Canadas justice system and democracy. LAO is therefore committed to expanding access, improving legal aid services, increasing the number of clients served and leveraging the impact of legal aid services across Ontarios justice system4.

LAOs goal was to develop a clinic law financial eligibility strategy that was both principled and practical.

LAO was also committed to implementing financial eligibility expansion quickly and effectively.

LAO further decided that financial eligibility expansion had to balance the objective of directing resources to areas of greatest need with the objective of providing resources across the province.

Finally, LAO was committed to ensuring that clinic financial eligibility expansion was consistent with a long-term vision of clinic law services; the principles of community governance; and the broad continuum of clinic legal services, including representation, legal advice and assistance, self-help materials, public legal information and/or systemic advocacy. This commitment meant that LAO would not specifically dictate how a clinic had to spend its financial eligibility funding or what new services a clinic had to provide. The determination of client needs, clinic priorities and service delivery models necessarily rested with individual clinics.

Developing an expansion plan that meets these objectives was not an easy task. There was no simple model or formula to guide LAOs decision-making. Reasonable people can and do often have very different priorities and ideas about how to promote access to justice most effectively. Moreover, access to justice is experienced differently across the province. All clinic clients are poor but that does not mean all clinic clients are the same. Access to justice is experienced differently depending on geographic access, Aboriginal status, linguistic issues, and by racialized persons and communities.

6. LAO's three-year plan to expand clinic law services

LAO has developed a multi-year plan to expand clinic financial eligibility and access to justice. LAO believes that this plan achieves an appropriate balance between meeting the legal needs of local communities, funding provincial initiatives, and investing resources to address new and emerging legal needs. LAOs plan is consistent with client needs, the majority of clinic submissions, LAOs clinic Strategic Direction paper, and the ACLCO strategic plan.

LAO has emphasized the need for a balanced, provincial perspective to clinic financial eligibility expansion. LAO has a statutory mandate to promote access to justice for low-income communities across Ontario.

The timing and sequence of the plan is premised on an analysis of the practical impact of financial eligibility increases on clinics. The plan also makes a practical distinction between initiatives that can be implemented quickly and those that necessarily require more time. That said, the majority of projects/funding in this plan are designed to be funded quickly.

Importantly, the plan includes a commitment from LAO to work together with clinics over the long term to monitor progress; to adapt expansion plans as circumstances and legal needs evolve; and to develop new projects jointly. Once fully implemented, the proposed multi-year plan will:

  • significantly expand financial eligibility and access to justice to poverty law services across Ontario;
  • provide funding to expand client services in communities with the fewest resources per low-income person across Ontario;
  • provide funding to expand client services in every region of Ontario;
  • provide funding to specialty clinics to improve law reform and test case services for low-income Ontarians;
  • expand clinic law services into new areas of law;
  • provide funding to ethno-linguistic clinics, including French language clinics; and,
  • provide funding to all of Ontarios Student Legal Aid Services Societies.

LAO believes that this program will improve clinic law services in communities across Ontario.

LAOs three-year plan is organized around five key initiatives.

Initiative #1: Expand client services in the communities with the fewest resources per low-income person

LAO conducted an analysis on clinic funding across Ontario. The analysis was conducted using the best available information for clinic catchment areas and Statistic Canada low income population figures. (A more detailed analysis of how the new funding was allocated in 2015/16 is in the LAO website, in Clinic Funding Qs & As, question 25.) This analysis demonstrated wide disparities in clinic funding for communities across Ontario.

There are 55 general service clinics in Ontario. There are very wide ranges of LAO funding per general service clinic. LAO funding per low income person (LIM) for general service clinics ranges from a high of $553 per LIM in a Northern clinic to a low $10.45 per LIM in a GTA clinic. In total, there are approximately 20 clinics below the provincial average LAO general service clinic funding per LIM across Ontario ($20.15), including 12 that are significantly below the provincial average, even after issues such as geography are factored into the analysis. Indeed, some of clinics that have the fewest resources per low-income person also have very large catchment areas.

LAOs Strategic Directions paper discussed the history, reasons and client impact of these funding disparities. Many clinic submissions urged LAO to address this long-standing issue/client need.

LAO has concluded that an important priority for clinic financial eligibility expansion should be to improve and expand services in the communities with the fewest resources per low-income person. Low-income clients in these communities cannot be reasonably said to have anything close to equal access to poverty law services. Legal aid services are publicly-funded services and it is unfair if low-income Ontarians in one part of the province have such disproportionately unequal access to important client services. Accordingly, LAO believes that an important priority for clinic financial eligibility expansion should be to increase funding for those clinics where funding is disproportionately out of line.

As a result, LAOs three year clinic plan will allocate $3.9M per year in annual clinic financial eligibility to the 15 clinics with the fewest resources per low-income person in the province. The communities served by these 15 clinics include almost half (55 per cent) of the low income population in Ontario. This funding will allow those clinics to hire a substantial number of new staff (lawyers and/or community legal workers) between them to expand client services, should they choose to do so.

This initiative will not equalize funding for all clinics. This initiative will, however, address an important and long-standing structural funding inequity potentially affecting access to justice for hundreds of thousands of low income Ontarians. Any proposal that did not address this issue would effectively widen the barriers to access to justice across Ontario.

Some clinics recommended that LAO should dedicate all new financial eligibility resources to clinics with fewer resources relative to their low-income populations.

LAO disagrees. LAO has a statutory mandate to promote access to justice for low-income individuals and communities across Ontario. As a result, LAO developed a balanced, provincial strategy for clinic law service expansion. Directing all available new resources to a small number of urban clinics would have prevented hundreds of thousands of low-income Ontarians from benefitting from expanded financial eligibility funding.

Initiative #2: Creating a provincial fund to expand services

A second LAO initiative will be to establish a provincial fund to help clinics develop collaborative initiatives that expand client services. LAO believes that this approach is likely the best way to build systemic capacity and to assist clinics to plan and work together for the long-term betterment of client services.

When fully implemented, LAO will allocate $2.4 million per year in funding to this initiative.

This initiative responds to many clinic submissions that demonstrated a willingness to work together to expand client services and access to justice. Many clinics also proposed interesting and important projects/ideas for ways to expand client services.

LAO believes these provincial, regional or local initiatives have significant potential to improve access to justice and client services across Ontario. Given the accelerated timeframe for this project, however, LAO is not in a position to evaluate every proposal or idea that was submitted during the consultation period. Many clinics also suggested that it would be premature to approve/prioritize such initiatives prior to the conclusion of several important regional initiatives, including major needs assessment projects.

The clinic submissions illustrate the range of client services that might be funded through this initiative. For example, the ACLCO submission and many individual submissions highlighted the long-standing need to improve community development services across the clinic system. Other clinics noted the need to improve access to justice in rural and remote areas of the province, including Northern Ontario.

LAO has concluded that the fund should be open to all clinics, including clinics that may have received funding through another financial eligibility funding initiative. LAO is aware, however, that the provincial fund initiative will be the primary funding opportunity for many smaller communities and general service clinics. As a result, LAO will carefully consider how this fund can be used to facilitate LAOs provincial mandate and promote access for clinic law clients across Ontario. LAO has also decided that the fund should encourage collaborative initiatives between clinics. In LAOs view, this approach is likely to build systemic capacity, make the best use of limited provincial funding, and ensure more communities/clinics directly benefit from increased financial eligibility funding.

The details of this fund have not been finalized. LAO will consult with the ACLCO and clinics to develop the funds criteria, application process, etc. LAO believes, however, that the fund could be organized around the following ideas/principles:

  • LAO believes it should establish a single provincial fund
  • LAO believes the fund should be open to all clinics
  • LAO believes that the fund should be used to support collaborative clinic initiatives and
  • LAO expects that most of the funding from this initiative will be used to support permanent initiatives. LAO does not want to create a time-limited project fund.

Initiative #3: Expanding specialty clinic services/meeting new client needs

Submissions from both specialty and general service clinics discussed the significant potential and need to expand specialty clinics services across Ontario. LAO agrees. Specialty clinics have a long history of making significant contributions to access to justice in Ontario. As a result, LAOs third clinic financial eligibility initiative will be to provide funding to expand specialty clinic services across Ontario. LAO will allocate up to $2.0M in annual clinic financial eligibility to support this initiative. LAO will dedicate 20 per cent of the clinic financial eligibility funding to expanding specialty clinic services. This sum is consistent with the current allocation of funding for specialty clinics.

LAO is mindful that there has not been a new specialty clinic established in Ontario in almost 15 years. Since that time, the legal needs of low-income Ontarians have evolved. There are now important areas of law affecting low-income Ontarians that lack the benefit of clinic services to support law reform, test case litigation, etc. LAO received several recommendations to fund services to meet under-served clinic law needs. The areas of law most frequently mentioned were employment law and immigration law. Accordingly, LAO believes that a portion of specialty clinic funding should be directed to expand services in these areas of client needs.

Funding will be allocated equally to all the specialty clinics in Ontario. This will provide each clinic with sufficient funds to hire a new staff person and will leave significant resources (approximately $600,000 per year) to expand services for new client needs. Several options for distributing this funding have been identified so far: establishing a new specialty clinic, providing resources to an existing specialty clinic to expand services, or distributing the funds regionally to general services clinics. LAO has not decided which funding model will be chosen. LAO will consult with clinics in the coming months to develop a program for new clinic services.

Initiative #4: Expanding services for racialized and vulnerable communities

The low-income population in Ontario is increasingly and overwhelmingly racialized. Ontarians from racialized communities also experience unique barriers to access to justice. Community clinic funding has not been adjusted over the years to account for these developments. As a result, LAO believes it is important to improve funding for Ontarios ethno-linguistic clinics so that they can expand and improve access to justice and services to Ontarios racialized communities and other vulnerable groups.

LAOs fourth initiative, therefore, will be to allocate up to $1M in annual funding to LAOs ethno-linguistic clinics. This will provide each clinic with sufficient funds to hire a new staff person.

Initiative #5: Expanding services at Ontarios Student Legal Aid Societies

LAO/OLAP has provided funding to Ontarios six Student Legal Aid Services Societies (SLASS) since their inception. SLASS use the clinic financial eligibility test and are funded as part of LAOs clinic budget. Traditionally, SLASS account for approximately five per cent of LAOs clinic budget.

LAOs fifth initiative will be to provide up to $700,000 in annual funding for SLASS to expand services. These funds will be divided equally between the provinces seven student legal aid services societies, including the new SLASS at Lakehead University.

7. Implementation and moving forward

7.1 Working together

In addition to the initiatives identified above, LAO will continue to work with the ACLCO, individual clinics and groups of clinics to develop, manage, evaluate and report on this far-reaching client service project. For example, LAO is committed to working with clinics to:

  • develop the criteria and application process for the provincial fund described in Initiative #2
  • develop identify the priorities and process for the new area of law initiative described in Initiative #3
  • develop appropriate reporting and accountability tools
  • develop priorities and plans for year four+ funding
  • consult with the ACLCO, individual clinics and groups of clinics on other issues as they arise.

7.2 Implementation planning

Implementing clinic financial eligibility expansion will require planning and patience.

The initiatives outlined in this note raise new and occasionally difficult questions and issues. On the one hand, many clinics have asked how the various initiatives fit together. For example, some clinics have asked how an initiative to expand employment law services will be coordinated with plans at some general service clinics to expand the same services. Other clinics have asked how asked how they can be expected to make long term service planning (and employment) decisions in the absence of final directions/decisions from LAO about funding, service priorities, etc.

These questions illustrate and confirm that clinic financial eligibility expansion is a process rather than a single, one-time event. LAO, the ACLCO, clinics and groups of clinics will have to work together to address issues as they arise. In other words, all participants in the clinic financial eligibility process have responsibilities to plan and consult on their initiatives.

The implementation of clinic financial eligibility will require hard work, dedicated resources, and a commitment to addressing hard questions with the goal of better and more accessible services for clients. LAO, individual clinics and the ACLCO will have to work together to build the innovative and accessible clinic law services that low-income Ontarians need and deserve.

7.3 Ongoing funding

The initiatives/strategy described in this note represent LAOs plan for the first three years of clinic financial eligibility expansion (2014/15 to 2016/17).

LAO wants to reiterate that this does not mean that funds distributed during the first three years are time-limited or that they will be reduced or reassessed at that end of 2016/17. Funding provided to a clinic as part of LAOs three year clinic financial eligibility plan is a permanent addition that clinics base funding that the clinic should assume will continue beyond 2016/17.

The provincial government has further advised LAO that it will be providing LAO with an additional $67M in funding to expand financial eligibility in 2017/18. LAO has not decided how year four funding will be allocated, other than that the base funding that a clinic received in earlier years will be maintained.

The provinces commitment to increase financial eligibility funding in 2017/18 (year four) may give LAO the opportunity to invest more than $10M per year in new clinic services in 2017/18 and beyond. LAO is not making any commitments or decisions regarding the allocation of funding over and above the current three year plan. LAO believes that it is too early to decide these issues. It is conceivable, however, that increased funding, should it become available, could be used to expand one or more of the initiatives described below. Additional funding could also be used to support a new initiative.

7.4 Reporting and accountability

It will be particularly important to ensure that the legal aid system is transparent and accountable for this substantial investment of public funding. As a result, LAO will work with the provincial government, clinics, and the ACLCO to develop an appropriate reporting and accountability plan for the new financial eligibility funds.

Footnotes

1. LAO had originally estimated that it would allocate $9.8M in additional clinic/SLASS funding in 2016/17. The revised 2016/17 estimate ($10.0M) includes an increase of $200,000/year in funding for SLASS to ensure equal funding for the provinces seven student legal aid services societies.

2. The initial business case for expanding LAOs financial eligibility was based on using the low-income measure (LIM) population (by individual, not household). In order to remain consistent with the government-approved strategy, LAO has used the LIM population to determine funding for clinics with the fewest resources per low-income person.

3. LAO Clinic Strategic Directions, page 4. In practice, these commitments meant that LAO would not dictate how a clinic must spend its financial eligibility funding or what new services the clinic must provide. The determination of client needs, clinic priorities and service delivery models rests with each individual clinic.

4. LAO Clinic Strategic Directions, page 6.