QUEEN'S BENCH DIVISION
Strand, London, WC2A 2LL
B e f o r e :
| Public Interest Lawyers
|- and -
|Legal Services Commission
Paul Nicholls (instructed by Legal Services Commission) for the Defendant
Hearing dates: 1, 2 December 2010
Crown Copyright ©
Mr Justice Cranston:
Contracting and the 2008 consultation
• To deliver more integrated services to clients by increasing the proportion of providers offering the full range (i.e. from Legal Help through to Legal Representation) and breadth (e.g. both public and private family work) of civil legal aid services
• To ensure clients are able to reach an appropriate service either locally or through reasonable travel
• To award contracts only to providers meeting quality thresholds to help safeguard the quality of advice clients receive
• To ensure that providers are able to bid for sufficient volumes of work to enable delivery of a full breadth of services that are regularly available and accessible to clients
• To ensure that Community Legal Service funding is distributed within the budget available and appropriate access is achieved, focused on procurement areas and categories of law where client priorities are identified
• To manage the bid process in a proportionate way, balancing the need to allow competition with the need to maintain services and a sustainable provider base
• To ensure that the contract provisions do not impose bureaucratic requirements on providers beyond those consistent with good standards of public service management.
• Aiming to deliver services where clients are based, taking into account the needs of vulnerable groups such as mental health clients and immigration and asylum legal aid clients who need to access services close to hospitals and removal centres
• Prioritising key areas such as domestic abuse, public law children and mental health
• Increasing the proportion of providers who offer the full range and breadth of service to ensure clients are able to access integrated and seamless services where possible
• Acting flexibly and working with providers and other stakeholders where there is a disproportionate impact on certain providers. For example, we will look to set a prospective minimum new matter start size that ensures smaller providers have the opportunity to increase capacity
• Aiming to ensure that equality and diversity is promoted within the provider base
• Ensuring providers are able to understand and meet the diverse advice needs of clients
• Ensuring clients are able to reach an appropriate service either locally or through reasonable travel.
"The [Community Legal Service] Strategy referred to "the absolute priority of providing face-to-face advice and representation to those detained in special hospitals". This is also a statutory duty and means that the focus of the category is very different to some other categories. Failure to provide access would have significant consequences for clients": para. 3.10.
"They are discrete locations where we can be more certain of a stable number of beds and therefore cases. There are also a large number of providers who carry out small volumes of work in the hospitals that may be interested in expanding their caseload in these locations. This means that we can be more certain that there will be oversupply for a defined volume of work, and hence we can institute competition without putting access at risk": para 5.14.
At paragraph 5.48 it was proposed that those with generic mental health contracts would be able to deliver an agreed volume of their cases at high security hospitals with prior agreement of their Legal Services Commission manager.
The Consultation Response
"A large number of respondents to question 7 of the consultation supported the introduction of a minimum supervisor to caseworker ratio in principle, and many felt that a ratio of 1:4 was appropriate. However, there were some calls for greater flexibility to take into account the experience of caseworkers being supervised. To accommodate more experienced caseworkers and to ensure that in setting the minimum ratio as an essential requirement to obtain a civil contract it is not too harsh a measure, we intend to revise the minimum supervisor to caseworker ratio across all civil categories to 1:6": para. 3.84.
The Consultation Response confirmed that, for the purposes of calculating the ratio, a supervisor must be someone who met the supervisor standard for the category of work bid for and actively supervised staff.
"Whilst we expect providers to deliver services in those regions in which they have bid to deliver matters, we recognise that due to the nature of some of the work and the geographical spread of providers in these categories, it may sometimes be necessary to undertake work for clients outside the designated regions. As such we will set out in the contract an allowance to undertake up to 40% of the total matter starts allocated outside of the region where they have been awarded": para 4.77.
Invitations to tender and the contract
"NB Applicants may select an "Exceptional Circumstances" option for use where Applicants consider that none of the other options provided apply to their Applicant Organisation. Applicants to whom this is relevant should be scored on how well they meet our criteria and may be awarded scores from 0-8."
"2.28 All supervisors must meet one of the following supervisory skills standards:
(a) has supervised in the relevant Category of Law and/or Class of Work at least one full-time Caseworker (or equivalent) for at least one year in the five year period prior to such a person undertaking Contract Work as a supervisor; or
(b) completed such training covering key supervisory skills that we approve from time to time no earlier than 12 months prior to the Contract Start Date; or
(c) completed the Level 3 or higher National Vocational Qualification (NVQ) standard (or any replacement from time to time) in supervising no earlier than five years prior to the Contract Start Date."
"In each category in which you have been allocated Matter Starts you must maintain a ratio of employing at least one employed full-time equivalent supervisor for every six full-time equivalent case-workers."
Employment in the context of supervisors was defined in the tender documents as meaning that the organisation had to hold an employment contract with that staff member or they had to be a partner, member or director of the organisation.
Bids and outcome
|Yorkshire and Humberside||330||620||330|
Ramifications of the 2010 contracting exercise
"The majority of them have been discriminated against and mistreated throughout their lives and I am sorry to say that to simply remove the legal representative who has know them well for many years, has understanding of their hearing impairment and a good working knowledge of the difficulties in dealing with deafness and mental disorder, is to simply compound the abuse and discrimination they have already suffered."
Clients of existing firms have also written to express their disquiet at no longer being able to instruct the solicitor of their choice, and with whom they may have long-standing relationships.
GROUND 1: VERIFICATION OF QUALITY STANDARDS
"(3) A contracting authority shall (in accordance with Article 2 of the Public Sector Directive) –
(a) treat economic operators equally in a non-discriminatory way; and
(b) act in a transparent way."
Regulation 4(3) mirrors article 2 of the Directive. Its rationale has been expressed in various ways. In R (Law Society) v Legal Services Commission  EWCA Civ 1264;  QB 737,  Lord Phillips CJ said that it promotes a level playing field "by enabling all tenderers to know in advance on what criteria their tenders will be judged and those criteria are assessed."
Breach of equal treatment?
GROUND 2: THE DISABILITY EQUALITY DUTY AND MENTAL HEALTH HIGH SECURITY HOSPITAL PATIENTS
"49A General Duty
(1) Every public authority shall in carrying out its functions have due regard to –
(a) the need to eliminate unlawful discrimination and victimisation;
(d) the need to take steps to take account of disabled persons' disabilities, even where that involves treating disabled persons more favourably than other persons."
"I am far from saying, however, that in another case, it might not be necessary for a local authority to be able to demonstrate, as a matter of its duty to have due regard to the need to promote disability equality that it had considered, in substance and with the necessary vigour, whether it could by any means avoid a decision which was plainly going to have a negative impact on the users of existing services."
Due regard to outcome?
GROUND 3: ACCESS TO JUSTICE
"shall have regard to the desirability of exercising it, so far as reasonably practicable, so as to
(a) promote improvement in the range and quality of services provided as part of the Community Legal Service and in the ways in which they are made accessible to those who need them."
Section 4(5) requires the Legal Services Commission to fund the specified services. Under section 5(7), in funding services as part of the Community Legal Service, the Legal Services Commission "shall aim to obtain the best possible value for money". Funding priorities are set in accordance with directions given by the Lord Chancellor and taking into account the need for the specified services. Section 6(3)(a) of the Act empowers the Legal Services Commission to fund services by "entering into contracts with persons or bodies for the provision of services by them".
No breach of the access to justice duty