Law Society wins High Court challenge on family legal aid contracts
30 September 2010
The Law Society has today won a High Court challenge to the Legal Services Commission's tender process for family law legal aid contracts. The Law Society's challenge, which was supported by Switalskis and firms from across the country, was raised following concerns about restricted access to justice for victims of domestic abuse and forced marriage, as well as vulnerable children.
The Law Society said the tender outcome would reduce the number of firms in England and Wales delivering family law legal aid from nearly 2500 to less than 1400, leading to what the Society has described as 'advice deserts', where there is little or no local provision.
The Law Society argued that the LSC had not emphasised clearly enough to firms the importance of its new caseworker criteria in the tendering process. More points were given to firms with membership of accreditation schemes which demonstrated they could undertake work in the full range of family law matters, including children work, domestic abuse and other family law work such as financial problems following divorce and separation.
Delivering the judgment today, Lord Justice Moses described the process as 'irrational'.
He said it was 'contrary to the LSC's own ends' that firms were not given enough time to apply for and achieve membership of accreditation schemes that would gain them vital points in the tender. As a result, Lord Justice Moses said, the LSC had 'arbitrarily and unfairly' distinguished between providers. This would, he said, deprive many vulnerable people of the services of experienced and highly qualified family lawyers.
The LSC's failure to give advance notice of the requirement of accreditation scheme membership was declared unlawful by the court. The LSC's decisions not to award family contracts were also declared unlawful.
Law Society president Linda Lee said 'We are extremely disappointed to have been left with no choice but to take legal action against the LSC, which refused to acknowledge the detrimental effect that this outcome would have on families.
'Legal aid clients are some of the most vulnerable in society and access to legal representation where required is their only hope of achieving justice.
'We hope that whatever steps the LSC now takes will see legal aid contracts properly distributed across England and Wales to ensure all families in need have access to justice.'
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."
Links:
Law Society Gazette: "Law Society wins Family Tender Challenge"
BBC: "Legal Aid scheme ruled unlawful"
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