Family Legal Aid Tender Deemed Unfair

The Law Society has just won its challenge on behalf of legal aid firms against the Legal Services Commission over the outcome of a controversial legal aid tender round for family legal aid contracts.

After a three day hearing the High Court has ruled that the Legal Services Commission’s bid round for family cases was unlawful as it had threatened to reduce the number of family providers from 2,400 to 1,300. Lord Justice Moses said the LSC’s failure to give adequate advance notice of the selection criteria led to it "arbitrarily and unfairly" selecting between providers. According to the Law Society, the LSC is now faced with a £300,000 bill for legal costs.

The Law Society president Linda Lee calls the result "a victory for the thousands of families who would have been left without access to legal assistance when faced with state intervention in their family or the consequences of the breakdown of a relationship". It should never have happened. We told them from the outset this was a flawed process and once the results were revealed that they should have taken steps immediately to deal with it. They didn’t."

The LSC appeared to initially be interested in making sure the practitioners that only did a small amount of work either increased the amount they did or stopped doing legal aid work. Ms Lee believes that "they seemed to accept the majority of practitioners gave a quality of service. Everything they asked for in the original consultation process was about quality, which we believed firms could have complied with

However, Lee says that by the time the tender opened the LSC appeared to have changed its mind. "Their requirements had been very much restricted and didn’t really relate to quality. They simply said, for example, they had to have a member on the child-care panel and the domestic violence panel, which hadn’t been previously stated. There were a large number of practitioners who could have applied for and got on that panel had they seen the necessity to do so; however by the time the tender document was produced it was far too late."

This led to surprise outcomes as specialist providers, such as Solace Women’s Aid and Dawson Cornwell, lost their contracts.

It has now been pointed out that the LSC could extend the existing contracts until April 2013 now that the tender process has been ruled unlawful, as they have a discretion to allow new entrants under the old contract system should they choose to.

Elizabeth Bettes

Published on 08/10/2010