Post by Colin Henderson on Nov 26, 2010 14:35:20 GMT
Wow Chris, well spotted!
Having skim-read the judgement this was a weak case on its facts and hence the refusal at permission stage. In particular: 1 Rutherfords had no track record at all in WBen compared with the winning bid (CAB/Shelter consortium) 2 Even if they had scored full marks on the Tribunal experience criteria, they would STILL have lost by one point, so no need for the judge to consider the rationality of that criterion.
Neverthless the judge seems to have accepted that it was rationally framed as it applied to these facts. He did not have to consider the quite separate point made by Collins in the CLP case which was the apparent irrationality of giving more points to those wth UT experience.
Here is the crux of the judgement, showing how the judge distinguished this case from the procedural points made in the Law Soc JR:
"The question is whether it was arguably unlawful to include a criterion relating to experience and expertise in the relevant area which was 'new' when the tender documents were published with just under two months available to take steps to improve one's position if the current state of affairs would deliver a low score. It is 'taking steps' that matters because the key worker or supervisor had to be identifiable, but need not yet be employed. Mr Sinclair draws an analogy with the Law Society case where the challenge was not to the legality of a criterion applied to the family law package, but to its timing. The analogy carries him only so far. In that case the criterion in question was to have at least one caseworker accredited under each of two different panel accreditation schemes at the date of the bid. It could be the same caseworker accredited to both, or two caseworkers accredited to one each. The complaint was that the criterion required the caseworkers to be accredited at the date of the bid (rather than at the date on which the contract was to come into force). It was not possible to achieve accreditation in the time available. It had not been appreciated by potential bidders that this would be how the tender would work, and so very large numbers of solicitors were unable to gain the points available. As it turned out, this failure was decisive in a large number of cases. It resulted in a wholesale culling of legal service providers in the family law arena. That was not what was intended (or expected) by the LSC. The Divisional Court identified the essential question before it at paragraph  of the judgment of Moses LJ and its conclusion at paragraph :
"80. The essential question is whether the LSC gave those who tendered a fair opportunity to demonstrate their knowledge, experience and commitment through accreditation. After all, it was by the external assessment which accreditation afforded that the LSC was able to judge who was best fitted to provide the services it required. … 105. …the failures we have identified to make clear what would be required to put a provider in the best position to acquire the maximum points was unfair and arbitrary. It led to the absence of any opportunity to acquire an accreditation – an opportunity which ought in fairness to have been given to achieve the LSC's objectives."
Accreditation is different from experience. It may be necessary to have wide experience to gain accreditation, but there are many with wide experience who had not sought accreditation. They could not do so in the time available. The criterion with which this application is concerned is one directed towards experience gathered in the previous year by the applicant organisation or, failing that, by an individual or individuals who would be working from the date on which the contract came into force. Nothing more needed to be done collectively by the bidding firm to gain the experience, nor by the key worker or supervisor concerned. In the unusual factual position of the Solicitors, namely bidding for welfare benefit work in which they had no very recent experience, their need was to identify a potential supervisor with experience of Tribunal related work. Ms McNally, a partner and member of the Solicitors, gives evidence that a supervisor was to be engaged in any event. Importantly and unlike the impact in the Law Society case, this criterion did not have the unexpected impact of the sort there apparent. The reasons which led this Court to quash the family law package in the Law Society case are not engaged. The timing of the introduction of the Tribunal criterion did not deprive bidders of a fair opportunity to bid with a view to securing the relevant points. The timing of the introduction of this criterion was not unfair or arbitrary. It does not follow from the particular difficulties that the Solicitors appear to have had with the criterion, given their unusual circumstances, that its introduction was arguably unfair. The timing point does not assist the claimants in this case.
It follows that the Solicitors have failed to show that the criterion was irrational or otherwise arguably unlawful in itself. Should I be wrong in that conclusion, in any event the argument could not assist them. It is plain beyond doubt that the application of this criterion had no impact on the outcome of this bidding exercise. The winning consortium had 86 points and the solicitors, after their appeal in respect of a different criterion, 80 points. So if the Tribunal criterion were excised altogether from the process, the winning consortium would have scored either 81 points (if it had otherwise achieved the maximum 5 for Tribunal related work) or 82 points (if the single point it lost in the evaluation exercise was attributable to this criterion)."
The other grounds re monopoly in SWL categories (where conflict of interest between clients is rarely an issue), legitimate expectation of continuing work (what, even if they lost the tender????) are weak and are dismissed easily
Rather harshly, I see the judge also found they were out of time. Yet SMLC have got through on their case which had greater delay. A lesson in the vicissitudes of public law!
PS: Absolutely no disrespect to Rutherfords for having a go - its only by doing so that other firms like CLP and DGL got contracts at all.
I was a bit peturbed about the Judge's reasoning in relation to conflict of interest:
"Whilst I accept that conflicts of interest will inevitably arise in all of the three areas covered by this package, it seems to me that the problem is being overstated. First of all, although the CAB and Shelter came together as a consortium for the purposes of this contract, they remain separate organisations...We have seen that within Norfolk there are four access points. In theory, any conflict of interest might be solved by referring the client to a legal service provider at one of the other Norfolk access points. A possible difficulty arises with that suggestion. The local CAB to each of the other access points and Shelter formed consortia and were successful in their bids...should a conflict of interest arise in Norwich a client could be referred to another legal service provider in an adjoining county, or to a national organisation."
So a client with a SWL problem that has a conflict of interest with the sole provider in Norwich can traipse around Norfolk, but their conflict of interest is with the CAB/Shelter consortium in Norwich and all other SWL providers in Norfolk are CAB/Shelter consortia and so, despite each CAB being seperate and independent, there is still a real potential for conflict of interest, so hey ho, the poor client can try Suffolk or Cambridge - or perhaps a national organisation (hmmm, isn't that Shelter?).
I have no issue with large organisations but I am not particularly comfortable with the 'monopoly' issue when it comes to conflict of interest. The LSC acknowledged it in Family (min 5 providers per AP) and Immigration (min 3 providers per AP), but seemed to ignore the possibility in other areas of law.
Also, if there is only one provider, then there are client choice issues and also practical access issues.
It appears the LSC and some Judges are not bothered about these issues.
Post by Colin Henderson on Nov 26, 2010 17:12:09 GMT
Perhaps I dismissed the conflict point rather briefly. There can often be conflicts in SWL categories where family members separate and seek advice on their circumstances, and yes the winner-takes-all tender awards have caused real potential difficulties in rural areas like mine. It is exactly one of the points which was used in the family JR but then by definition a conflict of interest arises in practically every case in that category.
Behind the view taken by the LSC is the assumption that 90% of the time the opponent is the credit company, benefits agency, local authority or landlord and so on. The other 10% who might have a problem just have to get on their bikes. In practice separate CABs do maintain separate CASE systems and can act for separate clients, but I'm not sure how Shelter offices work.