The High Court has today quashed the Lord Chancellor’s decision to tender for contracts to deliver legal aid funded Housing Possession Court Duty (HPCD) schemes.  The tender was based on new, larger scheme areas and price competitive tendering. The Court’s judgment is available here.

Following a consultation exercise in which the overwhelming majority of respondents objected to the Lord Chancellor’s proposed changes to the procurement of the HPCD scheme contracts, on 16 August he decided to proceed with his proposals. These proposals consolidated the HPCD scheme areas, reducing the number of contracts from over 100 to 47, and introduced price competition. The tender documents were published on 12 October 2017, and in early May 2018 the Legal Aid Agency announced which organisations had successfully bid for many of the new scheme areas.

The Law Centres Network (LCN) was concerned about the negative impact that the larger scheme areas and price competitive tendering would have on Law Centres’ ability to continue to deliver their local HPCDS and other related services; and about the subsequent impact on people who depend on representation in the HPCDS and the additional support provided by Law Centres to keep their homes.

In this claim for judicial review, the Law Centres Network argued that by deciding to proceed with the tender on the basis of larger scheme areas and price competitive tendering, the Lord Chancellor had acted irrationally. This was because the justification he gave for increasing the scheme areas was that they would improve sustainability, but he had insufficient evidence to show that sustainability was a problem for the HPCD schemes, or to show that creating larger scheme areas would address any such problem. It was further argued that that the Lord Chancellor has proceeded to implement the changes without sufficient investigation into or due regard for the impact of the changes on Law Centres and the clients that they represent, many of whom have protected characteristics under the Equality Act 2010.

In finding that the Lord Chancellor had acted irrationally and breached his Tameside duty of inquiry, Mrs Justice Andrews DBE observed that:

“Whilst the conclusions that small schemes were not financially viable and larger schemes were likely to be more economically viable for providers are ones that might be reached by a rational decision-maker, following a proper evidence-based inquiry, they are not so obvious that they can be assumed to be right without making any investigation of the financial impact of the proposed changes…

I am therefore driven to the conclusion that this decision was one that no reasonable decision-maker could reach on the state of the evidence that the LAA had gathered and in the absence of further inquiry.” [§ 91 & 93]

In finding that the Lord Chancellor had failed to give due regard to the impact of the proposed changes on people with protected characteristics, in breach of his duty under section 149 Equalities Act 2010, Mrs Justice Andrews DBE stated that:

“In my judgment if, as is the case, there is a real risk that in consequence of the restructuring of scheme areas, clients using the HPCD service will no longer have the same access to the “wrap around” services that are not covered by Legal Aid and which may make all the difference to whether they end up homeless and destitute, that is something that the Ministers should have been made aware of, and should have given due regard…

However, in this case, I regret to say that the evidence falls a long way short of demonstrating that any Minister (in person) gave due regard to the equality impact of the proposed changes..” [§ 104-105]

Mrs Justice Andrews DBE has ordered that the Lord Chancellor’s decision to tender for HPCD scheme contracts and the decision to publish the tender documents on 12 October 2017, be quashed. This means that the procurement exercise, the outcome of most of which was announced in early May 2018, cannot stand.

Julie Bishop, Director of the Law Centres Network said: “This Judicial Review arose from our deep concern about the impact of changes, proposed for no good reason, on people about to lose their home. With early legal advice almost entirely cut, duty desks are key to reaching people who could not find or access prior help.”

The Law Centres Network was represented by Polly Brendon of the Public Law Project, and Jason Coppel QC and Edward Capewell of 11 Kings Bench Walk.

For enquires please contact Polly Brendon on p.brendon@dev.publiclawproject.org.uk

Notes to editors

1. The Public Law Project (PLP) is an independent, national legal charity The Public Law Project (PLP) is a national legal charity which aims to improve access to public law remedies for those whose access to justice is restricted by poverty or some other form of disadvantage. PLP’s website can be accessed here.

2. The Law Centres Network (“LCN”) is the national membership body for Law Centres, and a registered charity. Law Centres are not-for-profit legal practices that specialise in social welfare law and focus on providing legal advice to disadvantaged people. Law Centres have operated in the UK since 1970. LCN’s website can be accessed here.

3. The judgment of Mrs Justice Andrews DBE can be accessed here.