Post by Richard Wilkinson on Aug 26, 2010 23:14:23 GMT
Ok a different take. Collins said that he expected that the JR would succeed. Given the clearly very limited prospects of success will the LSC feel there is Sufficient Benefit to continuing this case at the public's expense to full hearing?? he he he
I agree. I would not expect the LSC to advise a prviate fee paying client of modest means to continue to fight an action where a Judge has expressed himself so forcefully. I think that an immediate embargo should be placed on carrying out any further work by the LSC on this case.
Post by StephenMichael on Aug 27, 2010 7:37:55 GMT
Again, well done CLP.
The case goes to a full hearing next week, I understand. However, if the LSC settle before then and CLP get what they want (or a compromise), then the case won't be heard and no precedent set. What happens after that for other unsuccessful bidders?
Post by Patrick Torsney on Aug 27, 2010 8:34:39 GMT
Here is a useful summary of the issues on Nearly Legal [EDIT: THIS PIECE HAS BEEN REMOVED. WILL INVESTIGATE AND UPDATE SHORTLY THIS PIECE IS NOW RESTORED WITH AN EDITORIAL NOTE FROM NL AS FOLLOWS: An early version of this post said that the JR had been given permission. This was wrong. The hearing was actually adjourned to 8 September without permission having formally been given. Apologies for my error. I've edited the post to correct this.]
I think one further point, which is likely to come up (if it hasn't already within the hearing that took place) is that in gaining the points for cases at upper tribunal bidders were allowed to say they scored full points if a member of their trustee board had performed these cases - it didn't actually have to be fee earners/caseworkers. Obviously, only NfP organisations can take advantage of this 'opportunity' and it may be argued that it was unfair to private practice to include something in the tender that they would never have the ability to take advantage of, unlike potential competitors
It's also interesting to note that the recent verification exercise does not in any way drill down to this level of detail in individual bids. There is no check on whether a statement saying an organisation had done X or Y number of cases was actually correct. I wonder if anyone got mixed up and said they did when they didn't, or whether they thought it meant had 'thought' about going to the upper tribunal, not necessarily representing
I think it is likely to be a strong challenge from CLP and obviously the High Court Judge believes they have a good chance of success. However, picking up on the point Rich makes in the News thread where we broke this story, from an initial look at what the Judge said it does seem that he focussed on one particular issue in respect of the scoring (hence my emphasis here also) and one issue alone and in respect of one category of law (welfare benefits) alone. I'll qualify this when I can get more information
Post by Colin Henderson on Aug 27, 2010 9:08:42 GMT
Well done to Chris Johnson and all at CLP, particularly for getting in to court promptly whilst Law soc and other family firms are just talking about it. That's housing lawyers for you I'm afraid - we love a good scrap (Carolyn Downs take note).
This is of course of great relevance for every single winner and loser who were scored against the challenged SWL criteria (ie most ilegal readers). Many of us are so punch drunk now we just want to some certainty and to be left to scratch a living in peace, but on balance I hope this case does expose the irrationality at the heart of most of what the LSC derive, even if it might invalidate every contract award made.
At the full JR hearing the High Court can be asked to make a declaration on whether the criteria are lawful, whatever the position between the parties. I hope CLP press on to get that regardless of what deal the LSC may now offer them to get them off their backs.
Hmmm, agree that LSC criteria are mainly irrational, but not sure about Collins comments regarding a firm's 'reputation'.
Who would judge such a criteria?
"Reputation" may not be a fair thing to judge, but "track record" certainly would be. For those firms / organisations with existing LSC contracts, their KPIs and client feedback surveys are measurable and available. Other things can be recorded such as financial outcomes for clients in WB cases.
I totally agree with the judge; a box-ticking approach is just nuts. I can't work for the only organisation that complained about the criteria before the tender was complete. We couldn't complain before then because there was no public consultation!
Finally, on the issue of upper tribunal cases - the tender did not specify that the cases must have been done under an LSC contract. This means this criterion is technically unverifiable, as if the work was done under other funding or privately the LSC would have no right to that information - it could justly be withheld on grounds of client confidentiality.
Post by Patrick Torsney on Aug 27, 2010 11:15:36 GMT
We couldn't complain before then because there was no public consultation!
I think this is where part of the problem lays. The LSC says that it did consult, with your representative bodies prior to the tender and on the criteria it intended using. To what extent this was actual consultation is another matter however, and something that the rep bodies themselves would have to answer
The problem is that under EU Procurement Law public tenders have to be open to new entrants and there has to be a level-playing failed between existing providers and new entrants. Therefore, it is very difficult (impossible?) to judge a public tenders on the basis of 'track record'.
Rep bodies through the CCCG were 'consulted' regarding the tender criteria and did warn the LSC of all the potential problems, but the LSC appear not to have taken any of these issues on board and are then suprised by the outcomes and providers reactions.
Surely the key point here is about 'tick boxes' and lack of discretion. I have had a concern for some time that there is no requirement for evidence on most of the statements in the tender and had thought that this would be tested at verification - for instance, what do we really do about information assurance which is a relatively new area for most of us - do we have policies drafted, are they compliant, are they implemented. It seems that this won't be tested so , in principle, any bidder could have cheerfully said ' look at me LSC I do everything and am brilliant' even if that is patently not so and could, on the strength of a tick got a contract. Surely this is the nonsense at the heart of the system?
The other fundamental issue has to be whether or not to value 'track record'. I accept the EU regulations mean that they require a level playing field between existing and new applicants - but is this really in the best interests of clients - is there no other way to test out whether a new applicant would give a good service, and should track record honestly not count for anything? Where are client's interests in this?
My final thought echoes one already stated - which is where the hell do we go from here - if LSC defend themselves at JR and lose then precedent set which throws all decisions into the melting pot,. If LSC do not go to JR and settle then precedent set which throws all decisions into the melting pot. If LSC go to JR and win............then no precedent set so no decisions in the melting pot - but wouldn't we all then feel that we were working in a system which does not support logic and justice? Just my personal view of course... I am now watching this space with my breath suitably bated and ready to learn at the feet of the masters how to resolve this situation...