30 September 2010
The tendering process for the Legal Aid scheme for new family law cases is unlawful and must be changed, the High Court has ruled.
The Legal Services Commission, which runs the £2.2bn scheme in England and Wales, has cut the number of firms able to offer legal aid from 2,400 to 1,300.
Two judges ruled the process as "unfair, unlawful and irrational".
The Law Society argued the scheme used was so flawed it threatened to create "legal aid deserts" around the country.
Lord Justice Moses and Mr Justice Beatson allowed the Law Society's application for judicial review.
They said the unfair tendering process could not be allowed to stand because it would prevent "the vulnerable and deprived from obtaining the services of very well qualified and experienced family lawyers".
Dinah Rose QC, appearing for the society, said the 40% reduction in the number of offices carrying out family legal aid work would lead to serious gaps in geographical coverage of family legal aid.
"We have referred to these as legal deserts, with no law firm available to undertake family legal aid work," she told the judges.
"At the heart of our case is the contention that the tendering process will have serious adverse effects on access to justice for very vulnerable groups, including those who are victims of domestic abuse, those who are victims of forced marriages, or vulnerable children."
End Quote Sir Bill Callaghan Chairman, LSC
Our commitment has always been to ensure that vulnerable people across England and Wales have access to justice”
Lawyers for the LSC said the society's case was "unarguable" and said it had complied with its duty to ensure public access to justice.
The judges said the new "caseworker criterion" introduced by the LSC for awarding contracts was central to the case.
It gave most points to law firms with caseworkers who were members of two separate accreditation schemes which showed they were able to undertake work with children and deal with other complex family issues, including domestic violence.
But the judges said the LSC had "unfairly" failed to make the importance of this clear in time, leading to "an absence of awareness" among firms that double accreditation was required - until it was too late to apply, said the judge.
Many highly-qualified firms were thus not given sufficient time to apply for the necessary accreditation.
The tendering process was "unfair and irrational" as it "inhibited and defeated" the objective of the LSC, which was to achieve a high-quality legal aid service for the public, said the judge.
After the verdict the LSC said in a statement: "We are obviously disappointed by the result.
"We believe that our tender process would have maintained access to high-quality services for clients, in line with our obligations under procurement law."
Sir Bill Callaghan, chairman of the LSC, said: "Our commitment has always been to ensure that vulnerable people across England and Wales have access to justice. Whatever we do will continue to be motivated by this imperative.
"We are currently considering the detail of the judgement and its implications, including whether to appeal. We are conscious of the uncertainty facing providers and will publish further information in due course."