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Legal aid tendering row

On Monday 9th August, the Law Society Gazette reported that The Law Society has called on the Legal Services Commission to suspend the implementation of the family legal aid tender round in a letter to its chief executive Carolyn Downs.

The new contracts are due to start on 14 October, but the Law Society’s chief executive, Des Hudson, wrote to the Legal Services Commission, calling for a halt to the process: “We believe that the LSC should suspend the implementation of the tender round pending an urgent but thorough and public evaluation,” he said.

Critics of the tender are unhappy with the lack of choice for consumers and say that in some areas of the country only one or two firms will be providing legal aid for family matters, such as domestic violence and child protection issues. They fear that in complex cases conflicts of interest could prevent the only legal aid provider in town from acting for more than one person and there may be no local representation available for the others. The outcome of the tender will see a 46% reduction in the number of contracts awarded.

In his letter to the Legal Services Commission, Hudson said:

“We understand that in east Cornwall one firm has been allocated all the matter starts [new cases] which means that, in any case where more than one party is legally aided, the second will have to find a solicitor elsewhere in the county – probably more than an hour’s drive away. We believe that the situation in Wales, in Northumberland and in Lincolnshire gives rise to similar concerns. We do not understand how this is consistent with the commission’s duty to secure access to justice.”

Hudson went on to explain that the tender outcome means that ‘over 1,100 firms will have to make significant changes to their business model with less than three months’ notice’.

The Law Society chief executive added that it was ‘quite wrong’ to assume that existing clients will be unaffected, as some firms are likely to close down and others will lose experienced staff, whom they will be unable to replace.

He said the impact of the tender would be ‘hugely damaging to the fabric of the family justice system’, and it was ‘unacceptable’ to implement it in just over nine weeks.

Hudson said that while suspending the implementation would cause ‘some disruption’, this would be ‘far preferable to the major disruption’ caused by going ahead without a review.

The Legal Services Commission, understandably, sees things differently. In an interview with the Law Society Gazette, LSC chief executive Carolyn Downs said the 46% reduction in the number of firms awarded contracts had not been intended by the commission, but resulted from the additional quality criteria that solicitors had asked it to include. She went on to suggest that in family cases there will be at least five legal aid providers in each “procurement area” to cover the situation where there is a conflict of interest between different parties in a single case. It seems that the two bodies may be using different measures when they talk about the areas to be covered by legal aid solicitors.

The Legal Services Commission accepts that the outcome of the tender is a significant reduction in the number of legal aid firms: subject to appeals the number of providers will be reduced from 2,400 to around 1,300. However, it is keen to point out that the process puts quality of services before cost and it says that the appeals procedures, now underway, may result in alterations to the contracts awarded.

The Guardian summed the situation up well with this closing comment:

“While the Legal Services Commission’s confidence in its own processes is commendable, it ought to address, publicly, the Law Society’s concerns in some detail. The whole point of legal aid is to provide those who otherwise couldn’t afford it with access to the legal system. Drastically reducing the number of firms offering advice and representation under the scheme doesn’t appear to fit that purpose.”

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