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Judicial reviews to determine contract awards

6 September 2010

The LSC’s handling of the award of family and social welfare legal aid contracts faces a tough battle in the courts.

Law Society has confirmed that it has launched a judicial review of the tendering process for family legal aid contracts.

Meanwhile, it has been reported a group of a dozen firms in London, Exeter and Hull that failed to win contracts are planning their own judicial review.

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.”

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.

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

“Those that 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.”

A spokesman for the LSC said: “We are disappointed that The Law Society has indicated that they are issuing proceedings.

“Under the new contracts, the LSC will commission broadly the same amount of help delivered across England and Wales in 2008/09, therefore contracting with fewer legal firms does not equate to providing less access to justice.

“We are aware that, in a very small number of procurement areas, there are issues for us to address. However, the tender is not yet complete as we are currently carrying out a verification exercise and completing appeals.

“We remain confident that, by the end of the tender process, we will resolve these issues. Once the process is complete we will undertake and publish a full review and we will discuss the scope of such a review with the Law Society, Resolution and other representative bodies.”

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Legal Aid Conveyancing