The housing possession court duty tender risks becoming another nail in the coffin of local legal services
Housing possession court duty schemes (HPCDSs) are an exceptional part of the legal aid system as they provide a service free at the point of delivery for people faced with losing their home. The Legal Aid Agency (LAA) currently funds 112 duty schemes in county courts across the country. As one solicitor told Legal Action, the schemes are good because clients get a decent level of service and providers get paid on time with the minimum of bureaucracy.
Last month, the government announced plans for the new tender round for the schemes (see page 4
). There will be a big reduction in the number of providers and the introduction of price competition as one of the criteria to decide who wins the tenders. Legal Action
believes the tender process will have a detrimental impact on providers and lead to an inferior service for clients who are confronted with losing their homes.
Duty rotas for possession hearings have been around a long time, but were relatively ad hoc in their organisation until a pilot scheme in 2001, run by the predecessor of the LAA, the Legal Services Commission. Its success led to the establishment of the present network of schemes funded by the LAA. Over half of the current providers are drawn from the not-for-profit (NfP) sector, with Citizens Advice running the most schemes (20), closely followed by Law Centres (19); firms of solicitors run 41.
In January this year, the government launched a consultation
on its proposals for a new tender round for the HPCDSs. Of the 59 responses to the question, ‘Do you agree with the proposal to consolidate the number of HPCDS schemes to provide for larger and more sustainable contracts?’, 48 were in the negative. The government’s justification for the consolidation is flimsy. It points to the administrative costs of having to retender 13 schemes over recent years as evidence that the present system is ‘unsustainable’; however, its solution – of concentrating the contracts between fewer suppliers covering larger areas – surely means there is a greater potential loss of services if a contract-holder decides to pull out.
Practitioners are concerned about the sustainability of services, especially in rural areas, due to the increase in travelling times between courts in the proposed larger procurement areas. However, it seems there might be some flexibility from the LAA about the proposed procurement areas, as it has been inviting feedback on this at the six regional meetings it has organised, which began in August and continue into this month.
Price competition risks a race to the bottom.
The LAA has agreed to allow subcontractors to cover the larger areas and this has been welcomed by most practitioners. However, they point out that the use of subcontractors could increase the administrative burden on the main contract-holders and the cost of providing the service.
On the question of price competition (‘Should price be introduced as an objective criterion in addition to quality to distinguish between tenders?’), a majority of the respondents to the consultation, 51 out of 59, disagreed with the proposal. Some practitioners believe there is too much uncertainty over which courts will remain open over the next few years to be able to set a realistic price for the service. One solicitor suggested to Legal Action that providers should ‘stand together’ and boycott the tenders to fight price competition. However, another source said they doubt that the providers would do this because, in contrast to criminal legal aid solicitors who successfully fought off competitive tendering for police station and magistrates’ courts duty contracts, civil providers are ‘less uniform’ and so more open to a ‘divide-and-rule’ approach by the LAA.
In Legal Action’s view, price competition carries the risk of a race to the bottom at the expense of quality. This is the case in any tender process across the public sector and so the price criterion has to be balanced, as the LAA is attempting to do with the HPCDS tenders, with controls to make sure clients receive a good quality of service.
Price competition also carries risks for the LAA that the government has failed to acknowledge. It will reduce the potential number of bidders substantially by increasing the size of the areas the successful contract-holders will have to cover. The resulting lack of competition might lead to an increase in costs in either this or subsequent tender rounds.
However, the government’s most striking omission in its response to the consultation is its failure to consider the needs of the client. Some organisations argued in their consultation responses that the success rate in cases and their proximity to the courts they serve should be considered in the tender process. They also emphasised the importance of good links with local referral agencies and local authorities in providing an efficient service. Legal Action strongly suspects that if clients had been consulted, it would have been success rates, as well as convenience and local links, that figured high in their priorities.
If the tenders go ahead, the HPCDSs are likely to be run by half a dozen or so larger organisations that might or might not subcontract to existing local providers. Many of the smaller local firms and NfP organisations that currently run the schemes are likely to lose out and either withdraw completely or cut back their housing law services, hammering another nail into the coffin of local legal services for the public.