Law Society begins legal action over family legal aid tender

The Law Society has sent a pre-action protocol letter to the Legal Services Commission (LSC), challenging the lawfulness of its decision to proceed with the allocation of family law contracts, which is predicted to see the number of law firms offering family legal aid services reduced from 2,400 to 1,300.

In a statement, Law Society president Linda Lee said: “[This will lead to the] loss of many highly expert lawyers from the legal aid system, and the development of significant geographical gaps and shortages of services.  A reduction in access to justice cannot be in the public interest particularly when it affects the most vulnerable people in society, those who are seeking to establish their basic rights.”

The Law Society expressed particular concern about the impact of the tender on care cases, which it said is likely to lead to a “significant shortfall” in the availability of care lawyers across much of the country.

It said: “The LSC consultation on the tender process did not initially suggest that those who were very experienced would be treated any differently from those who had panel membership. Firms were only alerted to the fact that accreditation would be such a crucial issue when the tender opened. By that time, there was not enough time for those with the relevant expertise, but who had not chosen to obtain accreditation, to do so. As a result, the application of the accreditation criteria has randomly admitted or excluded firms regardless of quality.

“We believe the contracts offered following the tender process would leave many areas with a grossly inadequate supply. For example, the whole of East Cornwall would be left with only one firm covering a huge geographic area. Northumberland faces a similar problem. Meanwhile many towns, even quite large ones, would only have one or two firms able to carry out family work. For the second and subsequent parties to care cases, the outlook is bleak.”

The Law Society claimed that the LSC's Equalities Impact Assessment was “fundamentally flawed” because it was conducted on the assumption that there would be little disruption to the supplier base, and therefore they did not forecast any significant change in the availability of services to clients. “No account has been taken of the fact that the majority of applicants for domestic violence injunctions and ancillary relief are women, who are likely to suffer additional difficulties in securing the services they need because of the reduction in the number of firms available,” it said.

“The LSC has stated that it did not expect this outcome and we believe them. However they must now take urgent action to review the position and take corrective action. We have stressed, and I repeat now, our willingness to engage urgently with the LSC and or the MOJ to discuss ways to resolve these issues. For the reasons noted above, we believe that the outcome is not consistent with the LSC's duties under the Access to Justice Act, or its obligation to undertake proper Equalities Impact Assessments.”

“We have therefore invited the LSC to extend the existing contracts for family law for a short period in order to give it time to conduct a review addressing these issues, and to identify such further steps as may be necessary to ensure that it meets its statutory obligations.”

Last week, the head of the Family Division of the High Court wrote to the LSC to express his concern that the tender process would lead to significant court delays if it meant that large numbers of inexperienced practitioners moving into the field and an increase in litigants-in-person.