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Posts Tagged ‘legal aid’

Bend it like Beckham – LSC Own Goal?

Right – metaphor sufficiently stretched. Sorry. I refer to the title of Nearly Legal’s recent post: LSC: goalposts aren’t moved, just very bendy, which articulates the latest contortions by the LSC.  Thanks Nearly Legal, although it has made my head hurt.

Incidentally, solicitors embroiled in the tender debacle may wish to join in the debate on the ilegal fora here.

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Everyone’s at it. Now the Law Society has launched a JR of the LSC in respect of their tender process in family matters. See the Gazette. As reported yesterday another JR application yesterday got off to a positive start, with Collins J describing the LSC’s approach as irrational. That matter was adjourned off for 8 days. So that’s 2 JRs, and if Nearly Legal is right (see yesterday’s post) there may be more to come. Who says there’s no legal news in August?

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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:


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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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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I’m a bit slow off the mark this week but I do want to report this: Lord Justice Wall has been widely reported as criticising social workers for being “arrogant and enthusiastic removers of children from their parents”. It doesn’t look as if he will be a wallflower of a President, does it?

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In another Times piece about social work ‘gone wrong’, it is reported that social workers tried to remove a child from his parents because of their vegan diet. I can’t really make sense of this report, because it appears to suggest that the parents had their public funding withdrawn on merits grounds, but public funding in care proceedings is not merits tested. I think that the answer is that the parents were pursuing some kind of Judicial Review against the Local Authority, which would be merits tested but they would have been entitled to legal representation as of right in relation to the main proceedings where the removal of their children was in issue.

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The Times reports on p 23 this morning that Cafcass has been given an extra £1.6m to help with the backlog in care cases.

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Yesterday I took a breather between lever arch files to chat with colleagues about the new fee regime that we will be paid under from next October. Some of the fees are clearly better than now, largely care work. For that I suspect we have the furore arising from the Baby P scandal to thank. But whereas domestic violence injunction work used to be the poor relation in the legal aid family it is now one of the most attractive pieces of work to do, notwithstanding the fact that it is usually quite straightforward to prep and run. Fee rates appear to be more linked to whether or not something is a political hot potato than by complexity per se – domestic violence and safeguarding children being two such hotties. So, for a return date injunction (which is relatively easy to prepare and can (often) be disposed of within minutes at a 30 minute block listed appointment) the remuneration is excellent. And its one of the few kinds of case that can often be double or triple stacked without causing any professional difficulty. At £400 a pop – cher-CHING! Nice work if you can get it – we’ll be fighting over these briefs.

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But just to demonstrate that this is only a different set of swings and roundabouts, there is a whole range of other work, which currently makes up the bread and butter income for many at the family bar (particularly at the junior end), that will be paid at appallingly low rates. So in private law children (contact, residence etc) the hearing fees start at £69.55, and for equivalent hearings in ancillary relief (money on divorce) precisely 65p more at £70.20 (who knows why?). This is a gross figure, before travel expenses, and including preparation and travel time. In real terms it amounts to probably £30 a day in your pocket (family barristers income comes almost exclusively from court work unlike solicitors who bill for the work they do back in the office). Remind me again why I trained for three years post graduation and incurred at £25,000 debt?

(more…)

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