It’s not difficult to imagine what would happen if the government announced that it could not guarantee services for, say, something like diabetes. There would be an outcry, ministers would be hauled before parliament to answer questions and would face being skewered on Newsnight. And quite rightly so. In contrast, though, the Legal Aid Agency (LAA) announced this week that it is abandoning the procurement process for education and discrimination law advice, leaving a question mark over the continued provision of these services. So far there has been little or no furore over this decision. What we can hear very clearly, though, is the clucking of chickens as they come home to roost.

For some time, the LAA has had a misguided idea that all initial advice can be given by telephone. This could work in many cases, but only if it paid for lawyers or experienced advisers to give the initial diagnostic advice, which, of course, it doesn’t. The contract for the operator service part of the telephone service has been held by a succession of outsourcing companies including, at one time, Capita (whatever happened to them?).

People wanting advice on debt, discrimination and education cases are forced to use the telephone gateway service (TGS). The operator service carries out a means, merits and scope test to see if they are eligible to be referred to one of the specialist civil legal advice (CLA) contract holders for actual advice and other assistance with their case. The CLA practitioners then have to carry out a means, merits and scope test again before they can offer a service.

Last year (2016/17) the TGS referred 3,727 discrimination and 2,055 education cases to the CLA contract holders (HC Written Question – 111874, 7 November 2017 (answered: 17 November 2017)). The clients referred to them are from all parts of the country and so they cannot usually offer a face-to-face service. In some cases, only advice is given; in others, a full remote casework service is offered to prepare a case for hearing before a tribunal (the service provided is at the legal help level of legal aid). According to the practitioners Legal Action spoke to, this is far from ideal, but it means they can offer a low-cost national service.

The telephone gateway concept was hugely controversial when it was debated as part of the then LASPO bill. The former Paralympic athlete and disability rights campaigner, Baroness Grey-Thompson, led the charge against the telephone-only service, arguing it ‘may adversely impact the most vulnerable clients’.1Steve Hynes, Austerity Justice, LAG, 2012, page 118. She eventually lost the amendment that she proposed against it, but won some concessions including provision for face-to-face services for clients who needed them. However, in 2016/17, no discrimination and only one education case was referred for face-to-face advice.

It does not take much to work out why there have been so few referrals for face-to-face advice - cash. These contracts are procured in a blind bid process in which price, as opposed to quality, is the main factor in determining who wins the tender. Providers are forced into the position of not offering face-to-face advice because of the low amount they have had to bid to provide the service. They would risk losing the tender if they built in the price of travel and other costs of providing a face-to-face service to clients around the country who need it.

The LAA statement on education and discrimination law contracts blandly states that it has cancelled the procurement process ‘following receipt of insufficient compliant tenders’. From speaking to sources, it’s simple to piece together what has happened. In the tender round, the LAA only wanted two or three suppliers for each area of law, as it did when the contracts were first tendered four years ago. Firms which lost out or did not tender have moved away from legal aid work, leaving a few firms undertaking the work for unsustainable rock-bottom prices.

Watch out if we do manage to create some political heat around this issue, as we predict that the government will try to blame the firms for either not tendering or not providing services of sufficient quality. Don’t be fooled. This is a market failure caused by the LAA and government procurement policy chicken coop. Many firms got out of legal aid work after the first round of tenders because they could not compete on price. They have, in the main, moved on to more lucrative private work.

Through their ill-conceived price-competitive tender policy, the government and the LAA have effectively killed off any market for publicly-funded legal help services in these areas of law. The main losers are members of the public facing sexual harassment and other discrimination cases, as well as children with special educational needs. These are the types of cases where people, in many ways, need as much help as someone with a serious illness like diabetes. The government should not be allowed to get away with pulling the plug on the public funding that provides this.