Legal advice and funding - Accreditation - Consultation documents - Legal profession

R (on the application of the Law Society) v Legal Services Commission: QBD (Admin) (Lord Justice Moses, Mr Justice Beatson): 30 September 2010

The claimant Law Society applied for judicial review of a tendering process conducted by the defendant Legal Services Commission (LSC).

The LSC undertook a competitive procurement exercise designed to identify the best providers of family legal services. It undertook extensive consultation from 2007 onwards culminating in February 2010 in an announcement of the criteria and the scoring system that would be applied to the bids. The bidding closed in April 2010. The new matter start contracts were to be awarded to the bidder that scored the maximum points. Where more than one bidder scored maximum points, allocation would be on a pro rata basis. The LSC anticipated, and stated in its documents, that the majority of legal providers would qualify and continue to provide services under the new system. However, a significant number of providers failed to receive contracts. In order to score maximum points a provider had to show that at the time of the bid it had a caseworker who was an accredited member of both the care proceedings panel and the domestic violence panel. None of the consultation documents produced indicated that that was necessary. The LSC had stated towards the end of the consultation process that all the information that it would use to distinguish between bids had already been provided. The Law Society submitted that: (1) the process of selection and proposed criteria were unclear and misleading; (2) by the time the criteria became clear it was too late to comply with them.

Held: (1) The tendering process was irrational and arbitrary. It had not been made clear by the LSC that in order to score maximum points a provider had to have a caseworker who was a member of both panels. Neither the 2008 consultation document nor any subsequent document, until the 2010 document announcing the criteria and scoring, had made any reference to the need for accreditation to both panels. Instead, the LSC in a consultation response had referred to supervisor-to-caseworker ratios and suggested that providers with a high number of panel members, even if they were members of the same panel, would be given priority. The LSC had referred to the need for experience and membership on a panel, which unwittingly misled those tendering to think that they needed to have supervisors on a panel. Supervisors were given time to get accredited on specialist quality marks, but there had been no suggestion at all that providers would suffer if their caseworkers were not members of the two panels, or that they would not be given time to get the required accreditation. There was a distinct lack of awareness about what was needed to achieve top marks, which was compounded by the LSC’s continued expressions of optimism that existing providers would be given the opportunity to adapt if necessary.

(2) The LSC’s evidence as to why the selection criteria were not allowed to be publicised in advance only served to emphasise the irrationality of its decision. While it was possible that providers would have applied for accreditation had advance notice been given and potentially would have claimed to meet the requirements, the real issue was whether they would have been able to establish that they did. That was the issue that should have dominated the mind of the LSC, not whether providers claimed to meet the requirements. The more providers there were with the required qualities, the more competitive the selection process would have been. Withholding information on how providers could increase their chances of acquiring contracts defeated the objective the LSC sought to achieve. It narrowed the pool of providers and simultaneously unfairly distinguished between those who were able to discern what was necessary from the opaque information provided and/or had accredited caseworkers, and those who were or had not.

Application granted.

Dinah Rose QC, Maya Lester (instructed by Bindmans) for the claimant; Clive Lewis QC, Paul Nicholls, Michael Lee (instructed by WYAS) for the defendant.