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Legal aid firm loses challenge to immigration tender

21 December 2010

Hereward & Foster, a legal aid firm in East London, has lost its challenge to the LSC’s immigration tender round.

The firm argued that the LSC had breached the Sex Discrimination Act 1975 by adopting scoring criteria which discriminated against part-time solicitors, who are more likely to be female.

Giving judgment in Hereward and Foster v LSC [2010] EWHC 3370 (Admin), Mr Justice Burnett said the firm argued that the supervisor attendance criterion indirectly discriminated against its sole female supervisor for immigration work, partner Deborah Adler, who worked part time.

“A total of eight points was available under this head, but the solicitors scored only five,” he said. “That made the difference between success and failure in the bid.”

Burnett J said that while he rejected the solicitors’ argument based on indirect discrimination, he accepted that by introducing the supervisor criterion the LSC “did not have due regard to its equality duty under section 76A of the 1975 Act”.

However, he said there was no good reason to extend time for the judicial review.

“The time at which the grounds for this challenge arose was 30 November 2009,” Burnett J said. “The solicitors were not entitled to wait and see whether the suggested illegality in the criteria resulted in their failure to secure a contract, or reduced new matter starts awarded to them even if successful.

“The evidence that there was a general sense among the profession that it was better to wait, exiguous as it is, does not alter that conclusion.”

“I am also satisfied that an outcome that might result in the award of a contract to the solicitors would involve prejudice to third parties and be a detriment to good administration.

“I decline to extend time and refuse permission to apply for judicial review.”

Burnett J said the circumstances of the case were “distant” from those in the Law Society case, where the tender round for the new family contracts had not yet started.

A spokeswoman for the firm said it was disappointed with the “technical, narrow approach” the court took to discrimination.

“It seems obvious to us that a selection criterion which weighs ‘hours of presence’ in the office more highly than supervision ratios as a measure of effective supervision will adversely affect women, who disproportionately work in small firms and disproportionately cannot work for long hours,” she said.

“We are pleased though, that the court recognised that the LSC failed to comply with its public sector equality duty, and that it should have considered the impact of introducing this kind of criterion on equality of opportunity for women solicitors.

“We hope this case has done a service to the profession in drawing this to the LSC’s attention, and that, after due consideration, they will not use a criterion of this kind in future tendering rounds.”

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Legal Aid Wills, Trusts & Probate