The UK High Court has ruled in favour of a challenge by the Law Centres Network (LCN) to changes made by the Ministry of Justice (MoJ) in its legal aid policy. The MoJ had taken a decision to restructure the Housing Possession Court Duty Scheme (HPCDS) into fewer, larger scheme areas and to make the tendering process price-competitive.
The HPCDS is a legal aid scheme in the UK administered by the Legal Aid Agency (LAA), an executive agency of the MoJ which gives contracts to, among others, not-for-profit Law Centres and private solicitors’ firms to provide‘emergency, on the day face-to-face legal advice, assistance, and advocacy services at court’ to those facing repossession proceedings.
The MoJ sought to consolidate the 113 pre-existing HPCD schemes organised by geographical region across England and Wales into just 47, thus leaving providers with much larger areas to serve. Change was also made to the tendering process for providers wherein price competition was introduced, unlike the fixed fee system in place for other aspects of the legal aid system. Both decisions were made to improve what the MoJ termed the ‘viability and sustainability’ of the scheme.
The effect of the decision was that the number of not-for-profit Law Centres holding HPCDS contracts was reduced from twelve to three, as they lost out to private bidders. Only 46% of HCPD schemes were now to be delivered by not-for-profit organisations. Many Law Centres would now act only as agents for principal contract holders, depriving them of their security of tenure. The decision would also see the funding of Law Centres greatly reduced as they lost their income from these legal aid contracts. The costs savings on the part of the LAA were ‘negligible’.
Furthermore, HPCD schemes run by private solicitors’ firms would likely be unwilling or unable to provide ‘wrap-around’ follow-up services to clients in areas of law no longer covered by legal aid under the Legal Aid, Sentencing and Punishment of Offenders Act 2010. Clients would now also have longer distances to travel to get to their nearest HPCDS provider.
The LCN put forward two grounds for judicial review of the MoJ’s decision. Firstly, it was argued that the decision was made irrationally and in breach of the MoJ’s Tameside duty to take reasonable steps as decision-maker to acquaint itself with relevant material. Secondly, the LCN contended that the MoJ had breached its Public Sector Equality Duty (PSED) under the Equality Act 2010 by not giving consideration to the potential impact of the decision on Law Centre clients, many of whom are disabled, have mental health difficulties, or are single mothers.
Justice Andrews agreed with the LCN on both grounds, finding that the MoJ’s justification that smaller schemes were unsustainable was ‘not evidence-based’ but was based on ‘assumption or conjecture or, at most, “anecdotal” evidence’. She also described statements made to Ministers that the Law Society and Legal Aid Practitioners Group approved the changes as ‘inaccurate and misleading’.
Justice Andrews heavily criticised the decision to go ahead with the new scheme when the vast majority of service providers consulted strongly opposed the changes and expressed serious concerns about the impact on clients. She concluded that the decision was one that ‘no reasonable decision-maker could reach on the state of the evidence’.
In relation to the PSED, Justice Andrews found that ‘users of the HPCD schemes disproportionately have protected characteristics’ and that ‘some of them will get a worse service overall’ as a result of the decision. In its failure to conduct an Equality Impact Assessment, the MoJ ‘failed to identify in sufficiently unambiguous terms all the adverse effects that the proposed changes could have on users of the service’.
The new contracts, already tendered for, will now be quashed.
Click here for the full judgement in Law Centres Federation Ltd v The Lord Chancellor.
Click here for the press release from the Law Centres Network.