Resolution strikes warning note on family legal aid victory

The family legal aid tendering round was “unfair, unlawful and irrational”, the High Court has ruled.

The Law Society is celebrating the result. Resolution chair David Allison, however, said the ruling made him “concerned about the future”.

The judgment, delivered this week by Mr Justice Moses, quashes the outcome of the recent tender round, under which firms bid against each other for a share of available legal aid work. The result, due to be implemented on 14 October, would have seen the number of firms contracted to supply family legal aid cut from 2,400 to 1,300. Family law firms that had a contract with the LSC prior to the tendering round will now continue with these for an as yet unspecified time.

The Law Society brought the judicial review, R (Law Society) v Legal Services Commission, after lawyers warned the cuts would lead to a legal advice shortfall among many desperate members of the public.

A jubilant Linda Lee, president of the Law Society, said the court win was a victory for “thousands of families”. The tendering round “would have translated into thousands of people facing grave difficulty in obtaining justice—ordinary people who are already facing extraordinary difficulties,” she said.

However, Resolution chair Allison said: “I don’t want to put a dampener on this but it puts us back, in a lot of respects, to where we started. It will resolve access to justice issues on a short term basis but I am concerned about what this means for legal aid lawyers going forward.

"There are legal aid lawyers who, as a result of this bidding round, have taken on new staff and new offices, bank loans and leases, so this is devastating for them. For everyone, this is going to mean another bid round. That means more investment.

“A subsequent bid round may be in a more hostile environment where there is less legal aid work available, and the fact firms aren’t in a contract may make it easier for [the LSC] to make cuts. The Bar have direct access now, and it may well be that barristers gear themselves up for extra contracts so there is less overall work for solicitors.”

Resolution, an organisation of 5,700 family lawyers, had opposed the judicial review “in the form that it took”. Allison said. “Our aim was to resolve the access to justice issues with the LSC. The LSC invited us and the Law Society to review access to justice on a procurement by procurement basis. That would have been our preferred option, but it was postponed due to the judicial review.”
 
Sir Bill Callaghan, chairman of the Legal Services Commission, 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.”