The Law Society - judicial review outcome

from the Law Society's website


www.lawsociety.org.uk/newsandevents/news...le.law?NEWSID=430927

Q&A: judicial review outcome


Tuesday 05 October 2010
Following our successful legal challenge of the Legal Services Commission's (LSC) family legal aid tender round, we have sought to clarify what the verdict means for practitioners. Some of the key issues will depend on future LSC decisions but the answers below are based on our current understanding of the situation.

1. What did the Divisional Court decide?

The court ruled that the decision by the LSC not to notify firms of the requirements for caseworker accreditation in the selection criteria in sufficient time for caseworkers to become accredited was irrational and unfair, and arbitrarily led to the exclusion of many lawyers who may be as skilled and experienced as those working for successful firms. The conduct of the tender process was thus unlawful.

2. What is the effect of its judgment?

The offers and refusals of contracts for family, family and housing, children services and child abduction services, for both successful and unsuccessful bidders, have been declared unlawful and quashed. The LSC has agreed to extend the pre-existing contracts, so providers will continue to provide family legal aid services under their existing contracts.

3. Will the Legal Services Commission appeal against the judgment of the Divisional Court?

We do not know yet. The LSC has been granted permission to appeal and has 14 days from the date on which the written judgment is issued to lodge a notice of appeal – so far there is only an oral judgment, but we expect that the written judgment will follow in a few days.

We will inform you when the court makes the written transcript of the judgment available, and if the LSC lodges a notice of appeal.

4. Does the judgment affect all civil contracts or only family contracts?

Only family contracts – including family, housing and family, children only and child abduction – are affected by the judgment. The LSC has indicated that it intends to go ahead with new contracts in all fields except family in November as currently planned. Family mediation contracts are not affected by this judgment. However, there are other legal challenges to the LSC to which the Law Society is not party which could disrupt the process. We have considered the position of firms that bid for family and housing work. The LSC has indicated to us that firms in this position will be permitted to continue undertaking housing work alongside their family casework.

5. Will there be a new tender round for family law?

The LSC will have to decide what to do in order to remedy the unfairness identified in the court's judgment, but the court has determined that what exactly the LSC does is a matter for the LSC and not for the court. One option for them will be to conduct a new tender round. However, they may consider it preferable to await the outcome of the government's forthcoming spending review and subsequent legal aid consultation before deciding how to proceed.

6. How will the extension to the contract be managed?

The LSC will consult with us on an amendment to the contract pursuant to clause 13 of the Unified Standard Terms Contract 2007 ('the 2007 Contract'). This clause provides that the 2007 Contract may be amended as a result of a decision of a UK Court, as is the case here.

7. What about the new family fee schemes?

These schemes are set out in a Funding Regulation. Clause 13(2) of the 2007 Contract gives the LSC the ability to amend the contract to reflect legislative change. Therefore it may be possible for LSC to introduce the new scheme alongside the extension of the 2007 Contract relating to family law, on the basis that it is required by the regulation.

8. I was planning to start a new family service, and had won a contract. I have now suffered significant losses because of the result. What can I do now?

Offers of contracts for new family services have been quashed by this judgment. This may well cause loss and hardship for practitioners who have invested to set up new services following the LSC's notification of the decision on their tender. Thus one effect of the judgment is to substitute one group of victims of the LSC's unlawful actions for another. To assist firms in this position we are taking legal advice on the possible options available to them, and would invite anyone who is affected to contact us.

9. I have already wound down my family legal aid team and do not want a contract extension. What should I do?

When the LSC serves notice on you amending the contract to extend the expiry date, you have the right to serve a counter-notice, which will have the effect of terminating the contract on the date the LSC's notice would have taken effect. Alternatively, you can serve three months' notice under the normal termination provisions.

10. Have firms previously awarded contracts until 2013 been deprived of business certainty following this judgment?

The new contracts contain a provision that they can be terminated on six months' notice. Given the current political and economic environment, we believe that although it is possible that contracts might have been allowed to run for the full three years, no business could safely rely on this provision not being used. This is equally true for the civil and social welfare contracts that will be let in November 2010.

Therefore even though the effect of this judgment is that family lawyers will now be operating on an extension to the existing contract rather than a new contract with a nominal fixed term, in effect the new contract would not have given any greater certainty.

11. Will the Law Society now be challenging the LSC's other legal aid tender procedures?

We are reviewing the position in respect of the other tenders in the light of the Divisional Court's judgment. However, the issues in the other areas are somewhat different from the position in family legal aid. The key issue for the Divisional Court was the way in which the LSC applied the selection criterion relating to accreditation, and the fact that this arbitrarily and unfairly excluded firms that had not had opportunity to become accredited in order to show that they were in fact as qualified to undertake the work as the winners. Moreover, the court recorded that the number of firms excluded was out of all proportion to the number that was expected by the LSC, and that this drastic reduction in the number of providers was inconsistent with the LSC's strategic aims and statutory duties. This combination of factors was unique to the family tender. The fact that we have succeeded in this one challenge does not therefore mean that we would necessarily do so in other fields.

www.lawsociety.org.uk/defendinglegalaid

What a mess and waste of money.

The tens of thousands that will be spent on appeals could have been allocated towards the legal aid budget.

The delays will be the death of a lot of firms. The LSC, true to form, compounds the issue

One option for them will be to conduct a new tender round. However, they may consider it preferable to await the outcome of the government's forthcoming spending review and subsequent legal aid consultation before deciding how to proceed

Charles

I agree with you Charles.

Lots of practices didn't even bother with the process they just stopped accepting legally aided cases.

I live in a large town with probably 30+ practices, now only 3 accept legal aid, can`t blame them year on year they are asked to do the same level of work for less money.

Yet more madness small firms who may have specialised in family law were squeezed out with the new now defunct tender process in favor of larger firms that don`t necessarily specialise in family law.

A total and utter waste of tax payers money............and its not over yet.

rubytuesday wrote:

3. Will the Legal Services Commission appeal against the judgment of the Divisional Court?

just as a follow up... have just received the following email from the LSC

LSC will not appeal the Law Society judicial review judgment
27 October 2010

After careful consideration, the Legal Services Commission has decided not to appeal against the judgment made on the Law Society’s judicial review of our tender process. The priority is to focus on the delivery of future public services; any appeal would only prolong the uncertainty over the future of family legal aid contracts, causing difficulties for clients and providers alike.

The LSC is now working closely with representative bodies and the Ministry of Justice on how to manage family legal aid contracts as well as combined family and housing contracts. Key decisions to make concern:

•the future extension for the Unified Contract for family and family & housing matters, which currently runs until midnight on 14 December, 2010
•harmonisation of family fees
•allocation of new matter starts.
Following constructive discussions with the representative bodies, we hope to provide greater clarity on these matters shortly. As previously announced, we are proceeding to let other 2010 civil contracts on 15 November 2010.

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Thank you for the update, Waso