Family legal aid tender process was “unfair, unlawful and irrational”

30 September 2010 by

Updated The High Court has ruled that the Legal Service Commission’s legal aid tender process was “unfair, unlawful and irrational”. The decision came in  a judicial review of the tender brought by the Law Society.

According to the Law Society’s press release:

The failure of the LSC to anticipate, let alone manage, the outcome of the process was the latest and perhaps most alarming of the LSC’s apparently haphazard attempts to reshape legal aid…

The LSC’s actions would have seen the number of offices where the public could get subsidised help with family cases drastically cut from 2400 to 1300.

The effect on the tender process is not yet clear. Although the court found that the tender was unlawful, it does not appear to have provided a clear remedy as yet. The Law Society Gazette say that family legal aid contracts have “effectively been quashed“. The four categories where contracts have been quashed are: “family; housing and family; children only; and child abduction.

The decision comes as no great surprise. The tender process has been widely criticised and a High Court judge has already called one of the individual decisions “dreadful” and “totally irrational” (see our post).

The BBC provide more detail:

… the judges said the LSC had “unfairly” failed to make the importance of this clear in time, leading to “an absence of awareness” among firms that double accreditation was required – until it was too late to apply, said the judge.

Many highly-qualified firms were thus not given sufficient time to apply for the necessary accreditation.

The tendering process was “unfair and irrational” as it “inhibited and defeated” the objective of the LSC, which was to achieve a high-quality legal aid service for the public, said the judge.

The Nearly Legal blog has more information on the basis of the decision, which was a fairly technical point about the manner in which the tender was carried out, rather than wider issues of socio-economic duties:

The JR was won on the issue of the significance given to panel memberships and the notification of that significance only. The wider argument on the equality duty and a failure to undertake a sufficient impact assessment wasn’t decided upon.

[Nb. this has now been amended to reflect the fact that, as the comment below confirms, the court did not decide on the wider equality duty as it didn’t need to go that far for the Law Society to succeed.]

Although the LSC could in theory ignore the decision, it is now likely either to appeal or rethink the tender process. This may only serve to delay the inevitable, however, with the system of legal aid under enormous budgetary pressure.

Whilst this is clearly a victory for the Law Society in particular and family law firms in general, given that the president of the family courts said recently that “you do not need a crystal ball” to see that legal aid for private law proceedings “is likely to be further diminished if not abolished”, this victory may ultimately be short lived. The LSC may simply redo the tender, correcting the defects identified by the High Court. And the result may be still be to restrict family legal aid significantly. However,

We will provide more commentary when the ruling is available.

Update, 1 Oct 2010: See the comment below, and the amendment above. The court’s discussion of the wider equality issues “certainly did not suggest that they would have failed if a decision had been made – quite the contrary.” This could suggest that if the LSC simply redid the tender with the technical failings addressed, the courts may still be amenable to more wide-ranghing arguments relating to the government’s duty to ensure access to justice. So this victory may not, in fact, be short lived.

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  1. Peter Soar says:

    This is an example of how the Carter reforms are bound to work. Carter’s central idea is that there should be fewer firms. Neither he, nor LSC, have any realistic idea of how solicitor’s firms work internally. His proposals ride roughshod over the complex netweorks of relationships between partners and the various financial and personal interests in their firms and ignore the equally complex networks which establish their position in their localities. Carter would pull these networks apart; it is good to see te Law Society standing up for the profession and the reult of the judicial review is welcome. However, if carter is to be defeated, there is much fighting to come. With LSC now an in-house agency of the Ministry of Justice and Osborne’s budget due shortly the outlook is gloomy. Predictions are that civil legal aid will virtually disappear (as argued for by the Adam Smith Institute) and family be further restricted. Legal aid needs powerful and wel-connected champions.
    Peter Soar, Cambridge

  2. barrister says:

    Your quote from Nearly Legal, that the wider arguments “got nowhere” is incorrect, and has now been corrected on the Nearly Legal blog itself.

    The position is that the judges, having found that the tender was unfair, irrational and unlawful on the first ground of challenge did not go on to decide grounds 2 and 3, because they did not need to do so. However, the comments they made on those grounds certainly did not suggest that they would have failed if a decision had been made – quite the contrary.

    Overall, the LSC was very severely criticised by the Court. Parts of its evidence were rejected as factually incorrect, and its own webside was described as (inadvertently) misleading.

    The very clear finding of the court was that the tender was irrationally conducted, in a manner which failed to meet the LSC’s own statutory duties and policy objectives, and in a way which deprived vulnerable people of expert representation.

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