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Society launches judicial review over family contracts

27 August 2010

The Law Society has launched a judicial review of the LSC’s tendering process for family legal aid contracts.

The society had warned that it was preparing a review after the number of firms with contracts fell from 2,400 to 1,300 (see solicitorsjournal.com, 9 August 2010).

Linda Lee, president of the Law Society, said: “The LSC has lost control of the process and this is the latest and perhaps most alarming of the commission’s apparently haphazard attempts to reshape legal aid.

“We are extremely disappointed that the LSC refuses to acknowledge the detrimental effect that this will have on families, especially when the commission itself had not anticipated that the tender round would produce this result.”

Lee said the LSC should have considered the consequences of its actions before pushing ahead and cutting vital services.

The move came after the award of social welfare contracts was strongly criticised by a High Court judge in Birmingham, hearing a judicial review brought by a local provider.

Mr Justice Collins, hearing a review brought by the Community Law Partnership (CLP), is reported to have described the criteria used for award of contracts as “utterly absurd and totally irrational”. It is understood that the remarks were made during a directions hearing.

In particular he attacked the points-based system, which awarded more points to firms with a higher number of welfare cases at the Upper Tribunal, even though this could be a reflection of a poor success rate at the Lower Tribunal.

“How can it be rational to penalise a firm that takes fewer cases to the upper tribunal, when any decent firm will do its best to make sure it doesn’t have to appeal?” Collins J asked.

He warned the LSC that if it did not reconsider its decisions not to award a contract to the CLP and to reject its appeal, he expected the judicial review to succeed when it reaches a full hearing next month.

Carol Storer, director of the LAPG, said the judge’s words would give hope to firms appealing against decisions to refuse them contracts and she called on the LSC to review the appeal decisions it had already made.

Storer said practitioners could not be criticised for failing to challenge the points-based system in the courts before contracts were awarded because the courts did not like theoretical judicial review applications and regarded them as premature.

She warned that legal firms who were successful in winning contracts would now have to ask themselves whether it was safe to go ahead with expansion.

“Those who have appealed unsuccessfully will hope that something will happen to allow them back in. Whatever happens people will be unhappy and there could be further litigation.”

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Regulators Legal Aid Procedures Police & Prisons