Tag Archives: tenders

New housing court duty tender opens

Following the collapse of the last tender, found unlawful by the High Court, the LAA extended the contracts of existing providers. However, in four areas existing contract holders were unable to continue, so the LAA is tendering for replacements. The affected areas are:

  • Barnet
  • Bodmin and Truro
  • Grimsby
  • Winchester

The tender closes on 26 November at 9am and the IFA can be found here.

The new LAG Legal Aid Handbook 2018/19 is out now – featuring full coverage of the civil and criminal schemes, fully revised and updated and including the 2018 civil contract. This edition includes brand new chapters on CCMS and community care, specialist chapters on housing, family, mental health, immigration and crime work, and greatly expanded coverage of civil costs. Written by a team of legal aid experts and edited by Vicky Ling, Simon Pugh and Sue James, it’s the one book no legal aid lawyer can afford to be without. Order your copy here now.

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A turbulent August

The summer is usually a quiet time; not so this year. There has been much going on, both in civil and crime, so here is a round up of recent events.

Two more JR losses

The MoJ and LAA have lost two more judicial reviews, both lost because of deficiencies in policy making and in the fairness of the LAA’s approach – making three in recent months (following the housing court tender) where the High Court has been seriously critical of MoJ / LAA failings.

In The Law Society, R (On the Application Of) v The Lord Chancellor [2018] EWHC 2094 (Admin)Leggatt LJ and Carr J quashed the recent changes to LGFS. Although critical of the Law Society’s conduct of the litigation, their strongest words were saved for the conduct of the MoJ consultation, which was found to be not open and transparent, in particular because the underlying analysis was not only withheld but concealed. The analysis itself was statistically flawed and could not be relied on. And, in respect of the Lord Chancellor’s argument that these failings did not prejudice the fairness of the consultation, the court said that “It is difficult to express in language of appropriate moderation why we consider these arguments without merit”.

Ames, R (On the Application Of) v The Lord Chancellor [2018] EWHC 2250 (Admin) is a case about the quantum of counsels’ fees in a criminal VHCC. As part of the negotiations, the LAA relied on figures produced by its internal “calculator”, but refused to disclose the calculator or any other policy or guidance it used for setting the amounts of reasonable work and the fees payable. The court pointed out that for all other fee schemes, the rates of pay and the basis of calculating fees were published in regulations. It found that the failure to disclose it was irrational and in breach of a duty of transparency and clarity to those whose fees were to be determined by it, a failing compounded by a further failure to engage with the arguments counsel seeking payment made, and mistakes in the LAA’s own calculations. The court directed the calculator and associated guidance to be disclosed.

New civil contracts start 1 September – or do they?

Organisations awarded civil contracts from 1 September 2018 were, in many cases, left in considerable doubt about whether they’d be able to continue as the LAA failed to upload contracts for signature for some successful bidders. Unless the contract has been uploaded by the LAA, and then accepted and executed, you do not have a valid 2018 contract and will not be paid for work done from 1 September 2018 (except under the remainder work provisions of the old contract).

There was no public announcement of what organisations in this position should do in the run up to the start date. LAPG was in constant contact with the LAA and kept its members up to date as best as it could (any legal aid lawyers not members of LAPG really should be). But it was not until late on Friday evening, just before the midnight end of the old contract, that the LAA announced that it was creating a special seven day emergency contract. It has issued further guidance on Monday – if your organisation is affected, make sure you check Bravo regularly and have uploaded everything the LAA has asked for. The LAA has said that organisations operating under the emergency contract will not be able to apply for certificates through CCMS, so you should either wait until your full contract is confirmed, or – if the work is urgent – call the LAA on 0300 200 2020.

New civil guidance

The LAA has begun the process of updating its guidance to take account of the 2018 contract – so far the costs assessment guidance and the escape cases handbook have been updated.

AGFS consultation

As part of its deal with Bar that led to the calling off of action earlier this year, the MoJ promised to re-work the AGFS scheme and invest a further £15million into it. The MoJ opened a consultation into the detail of how this would be done – it closes on 28 September.

The new LAG Legal Aid Handbook 2018/19 is out now – featuring full coverage of the civil and criminal schemes, fully revised and updated and including the 2018 civil contract. This edition includes brand new chapters on CCMS and community care, specialist chapters on housing, family, mental health, immigration and crime work, and greatly expanded coverage of civil costs. Written by a team of legal aid experts and edited by Vicky Ling, Simon Pugh and Sue James, it’s the one book no legal aid lawyer can afford to be without. Order your copy here now.

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Housing court duty tender cancelled

As we reported here, the High Court quashed the LAA’s decision to re-configure the boundaries of court duty schemes and tender based on the larger scheme areas. It found the basis for the plan to be so lacking in evidence as to render the decision irrational. As a result the LAA has now announced that it has cancelled the tender. Any bidders previously notified of a successful outcome will not now be awarded a contract. Although the announcement does not set out next steps, we understand the LAA has now written to existing providers offering a one year extension to 30 September 2019. The work will be based on the 2013 contract specification, not the new 2018 specification.The purpose of the one year extension is said to be

to enable a review of relevant policy and to provide the time needed to prepare and run a new procurement exercise for these services.

Existing providers who wish to continue will be required to have a 2018 contract in housing and debt. It is not clear what provision the LAA has put in place where the existing contract holder has not bid for a 2018 contract, which would mean they cannot continue and therefore there is no provider to continue the existing scheme until September 2019.

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Housing Court Duty Tender Quashed

The High Court has quashed the LAA’s tender for housing court duty possession schemes in R (Law Centres Federation Limited) v Lord Chancellor [2018] EWHC 1588 (Admin). The Law Centres Federation argued that the decision to reduce the number of contracts available by increasing the size of scheme areas to cover multiple courts was irrational and in breach of the public sector equality duty.

Andrews J was heavily critical of the LAA and MoJ’s approach to decision making, in particular the gathering of evidence. She found that a series of questionable assumptions without data had been made, and the position of the representative bodies mis-represented. Submissions to ministers were “woefully inadequate” and necessary enquires had not been carried out. As a result, the minister making the decision was misled and not properly briefed, and consequently reached a decision no minister, properly briefed and in possession of all the facts, could reasonably have reached.

It is not yet known whether the Lord Chancellor will appeal or what action the LAA will take to ensure schemes can operate beyond September 2018 now that the tender process awarding new contracts has been quashed, with existing providers already given notice of termination. We will report developments.

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2018 Civil Contracts Update

Just before Easter, the LAA released some more information about the 2018 civil tender process.

The failed discrimination tender will be re-run, though in the education category existing providers have agreed to continue, so no re-tender will be necessary.

In housing the LAA has failed to secure court duty provision in Cornwall. In 39 procurement areas, no or only one compliant bid for face to face contracts was received, so the LAA will be re-tendering in late April 2018. These areas include the whole of the South West of England beyond Bristol and Somerset, much of northern England outside the major urban areas and parts of the Midlands. Meanwhile, the Law Centres Network has been given permission to judicially review the court duty tender process as a whole, with a hearing listed for next month.

In family, there were 7 areas with no or one bidder, and 6 in immigration.

The full list of areas that will be re-tendered can be found in Annex A of the LAA’s update, here.

This level of procurement failure is unprecedented in legal aid. The initial tender exercise failed to find any successful bidders in two whole areas of law – education and discrimination – and leaves many areas of the country without meaningful access to legal aid in other areas. It is a further development of a process of market failure which has been underway for a long time, accelerated by LASPO, where in many places it is no longer viable to continue legal aid work. It is difficult to see how a repeated tender exercise – based on the same scope restrictions, payment rates, and contract terms – will yield a significantly different outcome. Last week Community Law Partnership, a top firm of housing lawyers in Birmingham, tweeted a typical case of a family turned away from housing assistance and only housed after a threat of judicial review. The entire thread sums up the value of the work they and others like them do – and ended with a reminder of why there are ever fewer who can.

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LAA cancels tender for education and discrimination contracts

The LAA has announced that it is terminating the tender for CLA telephone contracts in the education and discrimination categories because “insufficient compliant tenders” were received, meaning there would not be enough successful bidders to run the service.

As there are currently only a very small number of contract holders, this suggests that there were no or very few bidders prepared or able to deliver the new contracts due to start later this year.

Education and discrimination are gateway exclusive categories – all cases must go through the telephone service and there are no separate face to face providers – all face to face services are carried out by the telephone contract providers, if they deem it necessary.

It is not clear what the future of education and discrimination services will be. The LAA says it will discuss next steps with affected organisations.

But if there are currently no providers willing to bid, or no providers able to demonstrate they can provide services of sufficient quality at an acceptable price, it is hard to see how that will change between now and October, when the new contracts were due to start.

The MoJ decided in 2012 to move education and discrimination services to the gateway with a small number of contracts. At the time many warned that there were significant risks with this approach. Numbers using the service have been lower than expected throughout. And there was concern that such a reduction in the provider base meant that there was no slack if contract holders pulled out or were unable to continue. It appears that fear has also been realised. Hopefully there is enough time for the MoJ and LAA to rethink before education and discrimination legal aid disappears altogether.

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HPCDS tender deadline extended

The LAA has issued some clarification regarding the volumes of services available, and as a result has extended the deadline for submitting bids to 11 December at 5pm. Applicants should be using version 3 of the Information for Applicants. More detail can be found here.

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