Administrative Court rules on adequacy of enquiries by Lord Chancellor when restructuring the procurement of housing legal aid contracts (R (Law Centres Network) v Lord Chancellor)
Alexander Campbell, barrister at Field Court Chambers examines this judgment, which concerns two decisions made by the Lord Chancellor concerning the provision of legal services under the housing possession court duty (HPCD) schemes which were funded by legal aid. The first decision, following a consultation exercise, was to reduce the number of scheme areas from over 100 to 47 and to introduce price-competitive tendering for the HPCD scheme contracts. The second decision was to initiate the procurement process by publishing the relevant tender documents. The changes involved dividing the country into larger geographical areas than before which the Lord Chancellor concluded would make the contracts more financially viable. However this conclusion was not supported by evidence and had the effect that a provider who was awarded a contract would have to service a larger geographical area which entailed additional costs. The Law Centre Network successfully challenged these decisions as having failed to discharge the Tameside duty of inquiry rendering them fatally flawed. Further the decisions were held to be taken in breach of the Public Sector Equality duty and were quashed.
What are the practical implications of this case?
The decision raises important points for lawyers working in national and local government and indeed for any public body.
First and foremost the decision is a reminder for public bodies that they must, when reaching a major decision, carry out proper inquiries into the decision and its impact. Public bodies should be careful not to make the mistake which the Lord Chancellor made in this decision of proceeding on the basis of assumptions which had not actually been substantiated. Where a public body is making a decision for financial reasons eg because it believes that its current way of proceeding is economically unviable, it must conduct sufficient inquiries to show that it is actually the case and, just as importantly, that its proposed new way of working will be a better one. Financial modelling of the current system and the new proposal would be an obvious way of achieving this.
Moreover the decision reminds public bodies of the importance of the public sector equality duty: public bodies must have due regard to the matters enumerated in that duty in section 149 of the Equality Act 2010 (EA 2010). The decision in this case reminds public bodies that a formal equality impact assessment is an obvious way of complying with the duty.
What was the background?
Civil courts across the country operate housing duty advice schemes, whereby a qualified representative will provide on-the-spot advice and representation in court to tenants being brought to court by their landlord in a housing matter (or for mortgagors being brought to court by their mortgage provider). Contracts to provide such schemes are awarded by the Legal Aid Agency.
The challenge in this case concerned a decision by the Lord Chancellor to restructure the way that contracts for housing duty schemes are awarded. In essence, the Lord Chancellor decided to make the geographical areas for such contracts considerably larger to make them more financially viable for the providers. Thus, for example, Wales would be treated as one single area so that any law centre or solicitors’ firm awarded a contract in Wales would have to be able to provide the housing duty scheme at County Court hearing centres across all of Wales. In practice this would mean law centres and solicitors’ firms having to pay agents to assist them in certain geographical locations and/or incurring significant travel expenses in travelling around the larger contract areas.
The Law Centre Network members, (who are not for profit providers of legal advice and assistance to people on low incomes), were some of the incumbent providers of housing duty scheme assistance. It challenged the rationale behind the restructuring of the legal aid contracts as being based on insufficient enquiries by the Lord Chancellor such that no rational decision maker could have reached that conclusion.
What did the court decide?
The Administrative Court found for the Law Centre Network and quashed the decisions of the Lord Chancellor to restructure the legal aid contracts and to award them to providers based on the restructured model.
The court reminded itself that the legal duty of a decision-maker is to take reasonable steps to acquaint itself with relevant material (known to public lawyers as ‘the Tameside duty’). The court further reminded itself that the court should only intervene if the decision-maker had acted on the basis of inquiries which no reasonable decision-maker could have been satisfied with.
The court held that the Lord Chancellor’s restructuring had been based on the notion that running a small, more localised housing duty advice scheme was not economically viable or sustainable. However the court held that there was no actual evidence to back up that notion. Instead the court held that it was merely an assumption. The Lord Chancellor argued that an inference could be drawn from the providers who had closed down their housing duty advice service. However the court noted that such providers had withdrawn from the scheme for various different reasons. The court held that without any consideration by the Lord Chancellor of the actual figures involved, or any financial modelling, the Lord Chancellor had not complied with the Tameside duty.
Moreover the court held that the Lord Chancellor had breached the public sector equality duty. There was little in the consultation document by way of consideration of the equalities impact of the restructuring ie the impact on those with protected characteristics who as a consequence of the changes may not receive the wrap around services offered by the law centres that were outside the legal advice and assistance offered in the HCPD legal aid contracts but crucial in providing support which may not otherwise be available. Accordingly the decision was unlawful on that basis too.
Court: High Court, Queen's Bench Division, Administrative Court (London)
Judge: Andrews J
Date of judgment: 22 June 2018
Alexander Campbell is a barrister at Field Court Chambers, and a member of LexisPSL’s Case Analysis Expert Panel. Suitable candidates are welcome to apply to become members of the panel. Please contact firstname.lastname@example.org.
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