QUEEN'S BENCH DIVISION
London WC2A 2LL
B e f o r e :
MR JUSTICE BEATSON
|LAW SOCIETY OF ENGLAND AND WALES||Claimant|
|LEGAL SERVICES COMMISSION||Defendant|
(1) CREIGHTON GROUP
|(2) LOCK AND MARLBOROUGH GROUP|
|(3) NATIONAL YOUTH ADVOCACY SERVICE||Intervenors|
WordWave International Limited
A Merrill Communications Company
165 Fleet Street London EC4A 2DY
Tel No: 020 7404 1400 Fax No: 0207 404 1424
(Official Shorthand Writers to the Court)
Mr Clive Lewis QC, Mr Paul Nicholls and Mr Michael Lee (instructed by Legal Services Commission) appeared on behalf of the Defendant
Mr Nicholas Bowen QC and Mr Ben Chataway (instructed by Creighton and Partners) appeared on behalf of the 1st Intervenor
Mr Anthony Speaight QC (instructed by Lock and Marlborough) appeared on behalf of the 2nd Intervenor
Mr Lindsay Johnson (instructed by NYAS) appeared on behalf of the 3rd Intervenor
Crown Copyright ©
"Research from the Legal Services Research Centre shows that there is a current need for improved access to early legal advice for both existing clients and those who do not get advice about the problems that they face. The proposals outlined in this consultation document will allow the LSC to secure easier access to face-face advice for people, in accordance with the stated aims..."
"In practice large numbers of family providers either already meet Integrated Services A, or are likely to be in less well supplied areas where we will be seeking Integrated Services B. This means that the overwhelming majority of family providers that follow the bid process and agree the new
requirements can expect to have their contracts renewed." (Our emphasis)
"We intend to measure this through Panel membership, and/or supervisor experience (see Annex B for more detail)."
"To demonstrate a specialism in Public Law Children, an organisation must have at least one adviser who is a member of the Law Society's Children Panel and/or a supervisor who has a past track record of this work as demonstrated by undertaking ten cases that have finished within the last two years ...
To demonstrate a specialism in Domestic Abuse an organisation must have at least one adviser who is a Law Society Advanced Family Panel Member or a Resolution Accredited Specialist in Domestic Abuse. Alternatively, they must be able to demonstrate experience of delivering an advice service targeted at clients suffering from domestic abuse..."
"6.41. In procurement areas where there are more successful applicants than work available, we will apply selection criteria to further distinguish
between bids, this will act as a tiebreaker.
6.42. Selection criteria will vary according to the category of law, information on these will be asked for as part of the tender documentation. We will
allocate matter starts to the highest ranking applicant first up to the maximum allocation requested, then the next ranking applicant, and
repeat this process until all the matter starts have been allocated. This will also need to take into account the need to ensure full coverage in an
area, and any other relevant factors, for example, a minimum amount of providers per procurement area and our assessment of the applicant's capacity.
6.43. Selection criteria for each category are set out below. 'Supervisors' means those that would meet the SQM supervisor standard – even if they are not the currently nominated category supervisor."
Integrated service As:
Ratio of Panel members to fee earners in priority areas (public law children, domestic abuse and private law children).
Preference will be given to applicants with a higher proportion of panel members to fee earners."
"Panel membership provides evidence of a commitment to working with clients in our priority areas of family law."
"5.6. Overall, because criteria have been developed with the aim of increasing access to civil legal aid for legal aid clients, we anticipate that proposals will have a positive impact on clients' ability to access the services they need.
5.7. The analysis that we have been able to undertake found that overall, 83% of existing providers currently meet the proposed criteria. We would emphasise that the proposed criteria are designed to increase access to quality legal services for civil legal aid clients. At present there are a significant number of providers who contribute only a small amount in terms of people helped, e.g., in Family 28% of providers do only 1% of family legal aid work. We are of the view that providers who do very little legal aid work will need to either increase this work to a moderate amount, give up legal aid work or join together in consortia if we are to ensure a sustainable, good quality and client focused services. This is likely to mean fewer and larger contracts."
We draw attention to that expectation that 83 per cent of existing providers currently meet the proposed criteria, and the expected explanation for those who would drop out.
"It should also be noted that these impacts are based on analysis of providers who we currently contract with and assumptions around consortia in SWL [social welfare law] categories. We have no way of predicting numbers of new entrants to the market or potential reorganisation of existing providers, for example, through mergers. We anticipate that although there will be some providers who based on their current contracts will not meet the criteria, they will adapt to meet the criteria if they choose to continue to undertake legal aid work. If we are not able to allocate all matter starts, we will hold additional bid rounds." (Our emphasis)
"In reality, we anticipate that many providers will be able to adjust their services to enable them to meet the criteria during the bid round..."
"5.21. In consultation we proposed one or two selection criteria per category largely based around supervisor to caseworker ratios or panel membership. 50% of respondents agreed with these measures. Whilst we plan to retain criteria around panel membership, we are reconsidering whether preferring those with a better supervisor to caseworker ratio would be appropriate. A few respondents were concerned that this would favour smaller providers and that it does not take account of the experience of caseworkers. As such we consider it more useful to us as minimum entry criterion rather than drilling down further.
5.22. To respond to other comments received, we will expand the range of selection criteria we will consider. In the main this will seek to build on
the minimum entry criteria to enable us to further decide which providers are able to deliver the best services for clients. This might include considering the access points that an applicant will deliver
advice from to respond to calls for more detailed local criteria recognising the greater confidence we have in those with a track record of delivering either LSC services or comparable services, reviewing experience of delivering priority areas, considering whether all levels of advice can be delivered and the extent that integrated services can be provided ...
5.23. Full detail on the matter start allocation process and our selection criteria, including how it will be scored will be set out in the tender
documentation due to be published prior to the opening of the bid round in September."
In fact, of course, the criteria were not set until January 2010 and not announced until the bid opened.
"In response to comments received, paragraph 5.22 of the Consultation Response gave examples of selection criteria we will consider, including assessing:
· track records of delivering either LSC services or comparable services;
· experience of delivering in priority areas;
· whether all levels of advice can be delivered and the extent that integrated services can be provided."
"What is the situation for organisations that wish to achieve SQM [Specialist Quality Mark] in time for the new bids, are the LSC going to be able to audit them in time?"
The response was:
"Providers who do not currently hold the SQM or equivalent quality standard will not be required to hold it at the time of bidding, but will be required to have passed a desktop audit at least six weeks before the contract starts and to have passed a preliminary audit and been awarded the SQM by 1 October 2010."
"Thinking specifically about family law:
• At present I am not on any of the panels. I understand one needs to be on a panel. Which one does the LSC prefer, Resolution or the SRA's panels?
• If one wants to do private and or public family law cases, does the supervisor have to be on the family panel or can they be on the children panel?
• There is a 3 month backlog in SRA's papers being marked, and Resolution have informed me that their next exam is in November 2009 and therefore the results will not be know until the bid has been submitted. So do you have to be on a panel before you submit your bid for tender?
• If one wants to do public child law only, I understand you require the supervisor to be on Resolution Child Panel. Is this correct or is the SRA one ok?
"There will not be a requirement for the supervisor to be on a particular panel when delivering private and public family advice or public law children work only. The supervisor requirements set out in the contract for mainstream family work will not differ from those currently contained in the SQM.
If your proposed supervisor is not a panel member at the time of bidding it will be a condition of any contract award that you must confirm that your supervisor meets the necessary standard (including, in family, panel membership) at least 6 weeks before the contract start date.
The LSC announced on 31 July that the new civil legal aid contracts will now commence in October 2010. This will mean that current contracts will be extended for 6 months. The postponement of the tender will allow legal aid providers more time to decide whether they want to bid for the new contracts and prepare their tenders based on recently published policy. This will include applying for panel membership if required."
"We decided to assess panel membership on the basis of the position of the applicants at the time of the tender. This was consistent with the approach adopted as part of the earlier immigration tender in relation to Level 3 accredited caseworkers. Assessing at a later date would mean that panel membership would be likely to be ineffective as a selection criteria as those who did not have panel membership would apply simply to meet the conditions of the tender, not necessarily as evidence of commitment and experience. Awarding points for applications at the time of the tender would have meant that should caseworkers have been unsuccessful, there would be considerable revisiting of scores and awards late into the process. We did however recognise that some organisations may be in a position whereby they genuinely had caseworkers that met panel membership requirements but had not obtained it and as such, awarded a point for those organisations employing caseworkers that had applied to one of the relevant panels at the time of tendering."
"9. However, as Ms Clark explains in her witness statement, it was decided that the criteria relating to the employment of caseworkers who were panel membership would no longer be used as an essential criterion but would instead be used only as a selection criterion. The function of a selection criterion is different from that of an essential criterion. Selection criteria are used to rank bids. Their concern is not to ensure, to the satisfaction of the LSC, that the tenderer will have in place certain necessary systems by the time the contract starts. Instead their role is to enable the LSC to distinguish between bids and place them in order of merit.
10. The LSC takes the view that the employment of caseworkers who are panel members is an indicator of quality and commitment ... The LSC took the view that in order to enable selection between bids, it was necessary to assess them as at the date of bid. So far as the panel membership criterion is concerned, tenderers who could show at the time of their bid that the employed panel members would be able to show that they had already demonstrated commitment and achieved levels of quality which the LSC regarded as valuable.
11. It therefore seemed appropriate to give some preference to those who had already obtained this quality standard compared to those who only undertook to achieve it in the future. There was a risk that if a long period were given before panel membership needed to be in place, there would be a great rush of applicants to all the panels as the great majority of providers would claim to meet this criterion, making it impossible to distinguish between tenders on this ground." (Our emphasis)
"We may make amendments to this contract as we consider necessary in the circumstances."
And then one is to comply with or take account of UK legislation as a result of any decision of a UK court. As we see it, my Lord, the position is that, as a result of the decision of this court, we cannot replace the family law contract with the new contract and therefore we would have to amend and roll them over, but of course the other tenders have continued and there is no challenge to them yet, and therefore we would assume -- I am not a betting man, my Lord, your Lordship may have inspired all sorts of people up and down the land to get excited. It is necessary as a result of the decision of this court to amend the contract and provide for the replacement for the non-family law areas, but to continue by whichever way for the future. So the likelihood is, and I make no commitments at all on behalf of the LSC and it needs to be understood that we make no commitments because we have not had time to consider this judgment, the likelihood is that the Legal Service is likely to be of the view that it may be likely to be necessary to amend, and the only question for the court is, if it considers that that is possible as a result of your judgment, then your Lordship will of course limit the relief that you give to the four related contracts, otherwise you have to quash everything for all the contracts, and that is what, for example, the National Youth Advocacy Service, Mr Johnson, wants because they want their community care, their education and so on to be replaced. Everybody accepts that the existing contracts have been continued now until 14 November, so the new contracts would not start until 15 November, and in relation to family law, we would have to decide how we wished to proceed in the light of this judgment.