The Legal Services Commission’s tender for legal family aid services in 2010 was irrational and unfair

01/10/10

The Divisional Court (Moses LJ and Beatson J) held yesterday that the public procurement procedure by which the Legal Services Commission tendered for the provision of family legal aid services in 2010 was irrational and unfair, and quashed all contracts awarded under it.  Since 2000, family legal aid services can only be provided by law firms that have contracts with the Legal Services Commission, which firms obtain by bidding in a tender round for the amount of work they wish to undertake.  In order to achieve maximum points in the 2010 tender, the LSC required law firms to have one caseworker who was, at the time the firm's bid was submitted, an accredited member of the Law Society's Advanced Family Panel and Children Panel.  But the LSC did not announce this criterion in time to give caseworkers who were not already panel members a chance to become accredited, and did not assess the impact that this criterion would have on the results of the process.  The unfair and irrational result was that large numbers of highly experienced and specialised family law firms (who had no reason to be panel members before) were unable to satisfy this criterion, and therefore did not win a contract to provide legal aid services.  The number of providers fell from 2470 to 1300.  The Court held that the LSC had thereby deprived the public (including some of the most vulnerable; victims of domestic violence and forced marriage, children in care proceedings) of almost half of the provider base of legal aid services across the country, contrary to its statutory duties to provide and increase access to justice.  The Legal Services Commission will now extend existing providers' contracts until it decides how to remedy the position.

The judgment is here.