Love me Tender

Nearly Legal has posted a really important blog post on the LSCs shifting position on the question of matter starts given to firms under the recent tender process. He suggests that the LSCs new position may now put it in breach of its own tender rules and at risk of legal challenge from firms who were unsuccessful in the tender bidding process.

If you are from a firm who has lost out in the tender process to a local firm who successfully bid for a large number of matter starts you should read this NOW and circulate it widely.

POSTSCRIPT:

Email from a colleague:

I think this is even more interesting…

Though it applies to housing rather than family, the judge criticised the arbitrary nature of the tender process.

High Court judge has today branded some of the criteria used by the Legal Services Commission in its recent social welfare tender ‘utterly absurd and totally irrational’.

Mr Justice Collins also said the ‘tick-box’ exercise adopted by the LSC was not appropriate for tendering to provide a public service that is designed to ensure access to justice.

Collins made the comments during a hearing in relation to a judicial review of the social welfare tender process which has been lodged by Birmingham firm The Community Law Partnership (CLP).

CLP claimed the criteria and scoring system used by the LSC to award contracts was irrational, because the system rewarded firms that took more appeals to the upper tribunal. It said firms that were more successful in the lower tribunal were penalised.

CLP, which specialises in housing law, had unsuccessfully appealed against the LSC’s decision not to award it a contract.

The judge said: ‘I am bound to say this is a dreadful decision and on the face of it the approach [taken by the LSC] is totally irrational.

‘How can it be rational to penalise a firm that takes fewer cases to the upper tribunal, when any decent firm will do its best to make sure it doesn’t have to appeal?’ he said.

Collins added: ‘If firms have a good record of ensuring they succeed in the lower tier tribunal, then appeals to the upper tribunal won’t be needed. To adopt a criteria which looks to the number of appeals to the upper tribunal and punishes those who do not need to appeal to it, because they are successful in the lower tier tribunal, is utterly absurd and totally irrational.’

He said: ‘There is ample evidence that this is a highly reputable and utterly efficient firm that is approved of by the judges, and you’re going to ruin it. You’re bringing it to an end as a result of this decision. How can you justify that? You can’t.’

Collins asked counsel for the LSC, Peter Oldham QC, if a firm’s reputation could be taken into account or whether it was simply a ‘tick-box exercise’.

Oldham replied: ‘I’d hope they’d take everything into account,’ but said the LSC had to comply with public contract law and could not exercise discretion.

Oldham said: ‘The tender invitation went out last year. If they wanted to argue about the criteria they should have done it then, not now.’

But the judge said: ‘Those tendering are entitled to take the view that access to justice criteria will be taken into account and discretion used, rather than just box ticking.’

Collins adjourned the hearing and advised the LSC to ‘consider carefully’ its position. ‘If you fight this and lose it, you could set a precedent,’ he warned.

Collins said that if the LSC’s decision not to award a contract to CLP remained unchanged, he would expect a judicial review to succeed.

‘I take the view that it’s not only arguable, but it would be difficult to dispute that the criteria relied on to mean this firm didn’t get a contract is totally irrational,’ he said.

POST POST SCRIPT: Nearly Legal has also posted on this JR. I understand the full hearing is scheduled for c 10 days time. Watch this space…

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Rozenberg on MoJ Cuts

Joshua Rozenberg warns of injudicious cost cutting of courts and legal aid:

Many of the economies we can expect will be false ones. Cutting legal aid will simply lead to more litigants in person. Cases will take longer and court costs will rise. Vulnerable children will be at greater risk. There will be more miscarriages of justice, costing huge sums to investigate and put right.

Full article here.

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Smorgasbord

I managed to get away from court early today. No stringing things out just to earn an extra bob or two for me. No, common sense and good counsel prevailed and the public purse has been saved a pretty penny and justice done etc etc. But as always there is much to do back in chambers. So whilst there is no time to hone the following into some compelling piece of art or pop-journalism, here are some interesting bits and bobs I’ve collected this week:

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Wall of Brick’s excellent observations on Martin Narey of Barnardos (and ex Probation Service) recent expounding of views on the family courts. I agree with Brick, and I think it best if I let him express my views through the link to his blog post, otherwise I might vent my spleen inappropriately – there are so many people with so many views on how to fix the family courts – Barnardos, LSC, solicitors organisations, CAFCASS, children’s organisations and slightly informed journalists… Every time I have turned on the radio I have heard a different element of the system being blamed for the totality of the current or impending catastrophe. I’m glad that the crisis is reaching a wider audience but there is an awful lot of balone out there.

Barnardo’s press release is worth reading in full. The headlines sound sensible – why not aspire to a 30 week longstop, even if we all know it won’t happen? But then you read that Barnardos want to have a a tiered, fast track target of 12 weeks for children under 18 months. Don’t get me started on why that’s *not good* idea. Quite apart from the fact that I hadn’t even worked out which end of my baby was up by the time he was 12 weeks, its astonishing to hear the suggestion that we can deal with quite the most difficult and sensitive of cases in the shortest period of time. Maybe we should just brand parents ‘bad mother’ across their forehead when their first child is taken away so that we can fast track them through to adoption when they deliver their next child? You see what churlish mood I’m in? I’ll stop now before I say what I really think.

Also worth a read are Law Society Gazette’s interview with Carolyn Downs (interesting take), and Catherine Baksi’s summary of the same.

I’m off to do some work. And some deep breathing.

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WHY CARE?

Background to this post appears here.

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Alas, this is not the beautifully crafted discussion piece I had wanted to post, but I cannot devote as much time to this as I would like, and so I offer it as your starter for ten in its slightly disjointed and unpolished form…

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Firstly, let me explode the myth that the outcome of care applications is inevitable and that therefore care proceedings are purposeless.

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Almost all care applications result in orders of some kind. Most result in permanent or long term removal, many in adoption. Only a very few are withdrawn because the evidential hurdle of threshold cannot be met. In that limited sense applications made are by and large justifiably made (The alternative viewpoint is that almost all applications succeed because the courts are a mere rubber stamp – I don’t subscribe to that view).

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But many applications result in different orders than originally anticipated or sought (supervision orders, residence orders or special guardianship orders) or with less draconian care plans (care order with a placement at home, a plan for eventual rehabilitation, a change in placement type, or identification of more suitable carers, more structured or substantial support package for parents or child, proper financial and support package for kinship carers). These changes in plan and outcome are on one level matters of detail, but it is in matters of detail that long term outcomes for children and families can be radically altered – the chaos theory of family law. Complaint was made at the review session that there is an increasing tendency for courts to micro-manage care planning and that this is inappropriate. In the first place I don’t think that this is an accurate representation of the law or of practice. But really, why shouldn’t care plans be scrutinised? If they are appropriate and properly thought through there will be no problem – detailed scrutiny is necessary where, as is sadly often the case, they are ill thought through or poorly justified. The extent to which courts scrutinise the detail of care planning is in direct correlation with the quality of the care planning, and the confidence of the courts in it.

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Meltdown Imminent

Couldn’t have put it better myself. This letter from the ALC published in today’s Times is spot on.

POSTSCRIPT: More superlatives – this time it’s implosion rather than meltdown (per Wall LJ).

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It’s Carnage Out There In The Desert

LAG reports on the slashing of the numbers of legal aid solicitors up and down the country as a result of the tendering process – from 2400 to 1300 in one fell swoop. It’s pretty disastrous. I understand that there are now only approximately 5 firms in the whole of Cornwall able to undertake family work (previously around 20), and only four firms in Exeter. Geographical distance can be a real barrier to access to justice particularly in rural areas with poor public transport and vulnerable impoverished clients. If those figures stand it is not difficult to envisage parents unable to obtain or make full use of legal advice and support even where the state is trying to permanently remove their children. If such things are not precisely what legal aid ought to be all about, what then is legal aid for?

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Whilst a number of results have yet to be announced and large numbers of solicitors are likely to appeal decisions refusing them contracts, it seems highly likely that this green and pleasant land may be undergoing something of a desertification as far as access to justice is concerned…

(Thanks to Provincial Solicitor for reminding me that I needed to post on this topic)

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