The Law Centres Network (LCN) scored a significant victory in the High Court last week with its successful challenge to the tender process for the housing possession court duty schemes (HPCDSs).
A judicial review was brought by LCN on behalf of the Law Centres that lost out on the HPCDS tenders after the Legal Aid Agency (LAA) cut the number of duty schemes from 113 to 47. The LAA had decided to increase the size of the areas covered by the schemes and to introduce price competition for the tenders in October last year. Only three out of 12 Law Centres that currently hold contracts successfully retendered for the new HPCDSs.
LCN, which is the national organisation for Law Centres, argued that the LAA based its decision on mistaken assumptions about the viability of the schemes and failed to comply with the public sector equality duty (Equality Act 2010 s149). In her judgment of 22 June 2018 ( EWHC 1588 (Admin)
), Mrs Justice Andrews DBE concluded that ‘this decision was one that no reasonable decision-maker could reach on the state of the evidence that the LAA had gathered’ (para 93). She also said it was ‘beyond argument that users of the [HPCDSs]’ were disproportionately drawn from groups of people who were protected by discrimination law (para 100).
In hard-hitting comments, she said the minister making the decision to introduce the revised scheme was misled by officials, who told him the switch to fewer larger schemes was supported by the Law Society and the Legal Aid Practitioners Group. The judge found that their views had not been sought, and that they had not agreed there was ‘a problem with sustainability’ and that what was proposed was ‘a necessary response to it’ (para 38).
Julie Bishop, LCN director, praised the legal team and those who supported the case. She explained in a press release (‘High Court win for Law Centres on legal aid to prevent home loss
’, 22 June 2018) that the judicial review ‘arose from our deep concern about the impact of changes, proposed for no good reason, on people about to lose their home’. She was also critical of the legal aid system’s failure to deal with the multiple problems many clients seeking help face and urged the Ministry of Justice (MoJ) to address this.
Hammersmith and Fulham Law Centre is one of the centres that currently holds a HPCDS contract. Sue James, the supervising solicitor at the Law Centre and an editor of the LAG Legal Aid Handbook 2018/19, said ‘the commitment and the passion for access to justice for all’ is what drove the Law Centres to launch the judicial review. She thinks ‘the case got stronger as more evidence was disclosed by the MoJ. Their decision-making was not up to independent scrutiny’ and the LAA ‘had decided to change the contracts many years ago and drove that policy, regardless of the consequences to Law Centres or our clients with protected characteristics’.
According to Vicky Ling, also an editor of the LAG Legal Aid Handbook 2018/19, the LAA should now retender with the existing procurement areas, adjusted for any court closures. She argued that price competition should be dropped and the tenders should be awarded on the basis of fixed fees. Ling also suggested that the LAA should ‘drop the 2013 contract provision that if you see a client on a duty scheme you can’t claim payment under legal help if they come to see you in your office within six months’ as this would pay ‘properly for follow-up work’.
Opinions differ on the detail of what the LAA should do next. Simon Harris, chief executive of Citizens Advice Staffordshire North and Stoke-on-Trent, told Legal Action it ‘made no sense geographically’ to put Stoke and Stafford together as the LAA had proposed, creating ‘huge logistical problems and a lot of pointless and unnecessary work for ourselves and our partner’. He welcomed the High Court’s decision but said that while ‘initially we were against price competition, believing that it would lead, as it often does, to a race for the bottom’, the way the LAA had implemented it ‘allayed our concerns’. Under the scheme the LAA had put in place before it was overturned by the High Court, Harris says they would have received an increase in the cost per case.
On 5 July, the LAA announced that it has decided to cancel the procurement process quashed by the High Court. As yet, no plans have been announced for the current HPCDSs.