Resolution today have issued a further press release stating that they are working with the LSC to undertake a procurement area by area review, which could see local re-tendering. This is somewhat surprising, as it could see certain areas having different criteria in order to secure contracts than other areas. Surely this in itself would be unlawful and open to judicial review by those firms in the areas they decide NOT to review but who have nevertheless been unsuccessful in their bid. I would have thought that the selection criteria and bidding process should apply across the board rather than area by area.
Seeing the number of applications for JR now issued and pending, it does leave me thinking that one application at least is likely to go to a full Hearing even if the Law Society pull out for some reason. Given the grounds of the JR, it seems as though there must be a good case to say the process is unlawful.
chatting it through with some colleagues it seems to me that there is a risk that, if JRs do succeed and a consequence is that the whole bid process is rendered null and void and we all revert to previous contracts, with a new bid round set up ( pause for breath) then the new bid round may well be with less money on offer because of the proposed spending cuts ... where would that leave us?
Post by Patrick Torsney on Sept 10, 2010 13:11:34 GMT
TomDom: I can't find the Resolution press release anywhere, it's not on their site or the LSC's. Can you email it to me or post it in full here?
@stephenmichael: which contract you are under is really a separate issue to how you have been selected to 'win' that contract. Hypothetically speaking, it would be possible if the whole bid round fell apart for everyone who currently has a contract to be issued with a new Standard Contract with a NMS allocation based on their existing performance. Obviously, the losers here would be new entrants or those who were already contracted but had bid for new categories
Despite the obvious legal challenges that may be possible, there are probably a variety of (more or less) equitable solutions should the bid round tender exercise fail entirely. However, it's all conjecture so I'm not going to ramble on about them. I suspect that what we will see is the whole tender exercise continue, with more and more fix and mend changes and out of court settlements/agreements following magical mystery matter starts popping up via the verification exercise
pippamackie: I think the spending review will affect providers irrespective of whether the bid rounds succeed or fail. If they fail then yes, there may be less money on the table and revised or reduced services in scope come any second attempt. If they succeed, then the LSC may amend or terminate the contract so as to incorporate new provisions on reduced scope of services and payment anyway. I think anyone thinking they will get more protection from the pending cuts if the bid rounds succeed is mistaken
National committee debates legal aid - LSC promises area by area review
The National Committee (NC) met on Tuesday to debate and review our position on the legal aid contracts. We promised you an update following this meeting and wanted to update you on the latest from our negotations with the Legal Services Commission (LSC).
What’s the very latest from the Legal Services Commission? Since the results of the bids came in we have been pressing the LSC very hard to address the real concerns of our members. As a result we have secured from the LSC a review of the impact of the tendering process on a procurement area by procurement area basis. The LSC have invited us and other representative groups to take part in this review and work with them to agree a solution for each region where there might be access to justice concerns. The LSC has given an assurance that if necessary this could mean local re-tendering.
We are still negotiating the exact terms of this review but have had a reassurance from the LSC that the review process is one in which we have a genuine role in examining the facts and influencing the outcomes. If we disagree with the LSC over a particular course of action we will say so publicly.
The review process will not only examine new access to justice issues, but will also address those that existed previously, for example amongst some of the outer London Boroughs and rural areas.
We will be writing in more detail and to request feedback from our legal aid members shortly.
Resolution’s latest position On Tuesday NC agreed that the guiding principle throughout should be access to justice and it remains very concerned about the potential loss of skill and expertise within the profession. NC discussed The Law Society’s judicial review (JR) and the lack of clarity about The Law Society’s objectives in launching the JR but agreed, to the extent that the objective is access to justice, Resolution is supportive.
NC agreed that that the best way to guarantee that access to justice issues are dealt with is to take the LSC up on their offer to work with them to review the situation in each procurement area and help craft practical solutions where problems occur. If at the end of that review process access to justice issues remain we will take whatever action is required. This may involve intervening in the JR.
You can read a full account of the NC decision below and a full history of Resolution's work so far on this issue is available here.
How were members’ views fed into the debate? As you will all be aware this issue has created division, upset, stress and anxiety throughout the membership. The Legal Aid and National Committees have been listening very hard to the views that have been expressed on all sides.
This was the first opportunity since August for NC to fully debate this issue and to help inform the debate, NC members were provided with copies of all correspondence received on this, both in favour of and against a judicial review. This correspondence included comments posted on LinkedIn. Also present and actively participating in the debate were a number of members who did not agree with Resolution’s position thus far.
As we move forward on this issue NC are committed to listening to the views of members. Please do continue to use the LinkedIn group, provide feedback to the Legal Aid Committee and let us know if there are any other ways, online or offline, in which we can provide a forum for your views.
The full National Committee decision
1. Resolution has been consistent in its concern to ensure access to justice for those requiring public funding for family law advice.
2. It is clear that as a result of the tender process those concerns have been borne out in a number of procurement areas – and as soon as it became apparent that there were problems we wrote to the LSC as early as July.
3. It is not clear what the TLS’s objectives were (or are) in launching JR. However, to the extent that the objective is access to justice Resolution is supportive.
4. We did not support the JR in August as we had (and have) genuine concerns about the impact of delay and uncertainty on the majority of our members undertaking legal aid work when the position on access to justice was (and remains) unclear.
5. Whether or not we were right in our concerns about JR being the appropriate route to secure the access to justice objectives, now that the proceedings have been issued we are dealing with a changed landscape.
6. Between August and the issuing of proceedings we have been
keeping our strategy under constant review meeting with all the concerned organisations listening to our members 7. The first opportunity since August to debate the developments and our strategy was always going to be the NC on 7 September as notified to members. We have had that debate, with passionate and informed contributions from those in NC and others who had expressed concerns about the August decision.
8. Our ability to influence the access to justice argument has been strengthened by the work that we have been doing throughout this process. Independently of the JR and in conjunction with other interested organisations we have secured with LSC a review of the impact of the tendering process on a procurement area by procurement area basis with the assurance that if access to justice concerns remain they will be addressed by, for example, local re-tendering.
9. We remain concerned that these issues are dealt with urgently to minimise the disruption caused by continued uncertainty. We want those of our members who, following the review, have contracts to be able to deliver services to the public as soon as possible. However, if following the review we are still of the view that access to justice issues remain, we will take whatever action is required. This may involve intervening in the JR.
10. Whatever we do we shall continue to inform and offer members practical advice and support.
NC also took note of all members present who had an interest in legal aid. A full list of NC members including those with a legal aid interest is available on the members' homepage.
Post by Patrick Torsney on Sept 11, 2010 7:52:02 GMT
Here is the latest from the Law Society, in part I think it can be seen as a response to the above. Any bold emphasis is mine:
Judicial review update, 10th September 2010
At the end of this week the Society wanted to update members on the progress of discussions relating to our judicial review and the current position in the litigation.
Members will appreciate that this is a truncated summary of events given the normal rules of litigation that must, as a precautionary step apply.
On Monday the Society met with senior representatives of the Legal Services Commission (LSC) to discuss on a 'without prejudice' basis a possible mechanism for an immediate review of the current position with an objective of seeking to identify possible solutions.
We first asked the LSC to conduct a review on 5 August. Until we issued proceedings, the LSC had insisted that a review conducted in late September, after verification and appeals, would be satisfactory, without any extension of the existing contracts. This was wholly unacceptable to us, to firms, and to the clients who would face substantial disruption.
The Society's position and focus was that the first issue to be considered was the terms of reference for such a review - what might or should be assessed, considered and measured - before there could be any consideration as to the mechanisms by, or the methods by which any possible solutions could be identified. The Society has retained expert advice to frame and prepare as a matter of urgency a proposed approach to that review. The Society set out in writing its proposals on Monday evening.
Counter proposals emerged from the LSC and the Society responded to them amending and offering a further version of review methodology. We attach the current version of the Society's proposed terms of reference [see bottom of post] which sets out how the Society believes the data should be established to enable a satisfactory and fair nationwide review to be undertaken.
It has not been possible to agree a joint approach.
Part of the Society's concern at the proposals from LSC is the absence of a complete review of the national picture. We also feel that there can be no prejudging of the question of whether the problems that have arisen can be resolved within the confines of the existing procurement process. A complete and thorough analysis of the facts must come first.
Such a review has, we understand, commenced involving the LSC and some other organisations. The Society believes that process to be incomplete, flawed and mistaken. We do not believe that it will prove sufficient to identify the access to justice problems thrown up by the result of this tender, and therefore we do not think it will be adequate to enable the LSC to discharge its statutory obligations.
In those circumstances the Society has declined to participate in that process. We recognise that it is for others to determine their own position in deciding to participate.
On Monday 6 September, the LSC sent the Advice Services Alliance (ASA) and the Society a brief consultation document setting out the mechanics of how they proposed to implement the one month's extension.
The Society is satisfied with the mechanism, but believes that it is not necessary for the LSC to extend contracts other than in the field of family law.
The LSC has to date insisted that as the contract is a single document, the whole contract has to be extended, for all categories of law. We believe this analysis is wrong. There also remains a question over those firms with social welfare law contracts in areas now served by a Community Legal Advice Centre (CLAC).
The LSC has indicated that they propose to issue new schedules giving firms one twelfth of their annual matter start allocation. Any firms that have geared up to expand or have opened new offices to undertake work for which they already have a contract in a new location should talk to their Relationship Manager about the possibilities for additional matter starts or to be permitted to undertake outreach work under the current contract from the new office location.
Unfortunately, it would appear that any organisations proposing to start offering services in a category of law for the first time from 14 October will not now be able to do so on that date.
Our judicial review is scheduled to be heard on 21 and 22 September, with judgement to be given on 24 September.
We will provide more information to the profession as and when we can.
Post by Colin Henderson on Sept 14, 2010 10:08:58 GMT
Oh dear! However the Law Soc spin it, it would seem the LSC have been successful in getting Resolution on board to their terms of reference for a relatively minimal review, and therefore may have something that looks reasonable to offer the court on the 21st. Another example of private practice solicitors and their representatives being unable to stick together? Always has been the Achilles heel from LSC's point of view...
Post by Patrick Torsney on Sept 15, 2010 7:32:07 GMT
More from the LSC connected to this, below. What do you think? Has the LSC removed the foundations from the Law Society's legal action, particularly now that Resolution, and it looks like LAPG, are onboard with the Commission regarding the review as an alternative to legal action at present?
Review of tender process
In our consultation response in 2009, we promised a review of the Civil 2010 Family Tenders process. This is part of our ongoing commitment to ensuring access to family legal aid services.
The review aims to identify any areas where issues may exist. We've invited the representative bodies to take part to ensure that all relevant views are taken into account. However, the Law Society has chosen not to participate.
Although the review is in its early stages, we've not ruled out the possibility of further tender activity. Both the LAPG and Resolution are seeking feedback from their members about any access to justice concerns in their procurement areas.
Post by StephenMichael on Sept 15, 2010 8:01:23 GMT
Here's my condidered opinion, for what it's worth.
The LSC know they risk getting hammered in the High Court, bearing in mind the comments of Justice Collins in another action with a similar legal issue. Their lawyers will be trying any tactic available to them to gazump the Law Society. So they have come up with this "review". In practice, what will happen. Will they be able to come up with a resolution that will satisfy everybody? Will they be able to satisfy the parties involved by November 14th? It seems a rather short timescale to me. I also have other views but they are too political to post here
I don't think that the LSC's agreement to work with Resolution and LAPG has really taken the foundations away from the Law Society's application. After all, with the Hearing now under a week away, it doesn't leave a great deal of time for an agreement to be reached that everyone is happy with.
Furthermore, the access to justice is but one issue. The other issue being pursued by the groups of solicitors who have intervened on the Law Society's application are largely basing their case on the selection criteria, etc, being unlawful. It is these firms who will want to drive the matter to a Hearing, as they will be the firms who remain without a contract if the LSC and TLS reach some form of shoddy compromise. I just cannot see them bowing out at the last minute, as to do so would leave them with nothing come the 15th November.