High Court win for Law Centres on legal aid to prevent home loss

The Law Centres Network (LCN) has decisively won a Judicial Review challenge to the Ministry of Justice's (MoJ) legal aid policy. The High Court has ruled that the MoJ decision, to contract for fewer, much larger housing solicitor duty desk schemes, was “one that no reasonable decision-maker could reach”. Therefore, the Judge has ordered that the new contracts, already tendered for, be quashed.

The changes concerned relate to the Housing Possession Court Duty Scheme (HPCDS). These schemes provide immediate legal advice, assistance and advocacy to people at risk of losing their home. These people, often vulnerable, commonly face possession proceedings due to rent arrears or mortgage debt. To them, stakes are high – they might be evicted and become homeless – so this timely assistance is vital.

There are currently 113 duty desk schemes across England and Wales. The MoJ last year decided to consolidate them into 47 schemes, each covering much larger geographical areas. It also chose to move from contracting the service at fixed fees it sets, like the rest of legal aid, to a price competition among bidders, potentially driving fees even lower. The MoJ decided to press ahead with both changes despite overwhelming opposition.

Instructing the Public Law Project, LCN asked the Court to quash MoJ’s decision to proceed with the tender as planned. It argued that the MoJ rearranged HPCDS based on questionable, untested assumptions (irrationality challenge). It also argued that the MoJ acted without proper analysis of its effect on people for whom the service is intended (equality challenge). [Square brackets below refer to judgment paragraphs.]

The Judge, Mrs Justice Andrews, upheld both claims. She concluded that MoJ did not meet its duty to properly acquaint itself with relevant material (known as a Tameside duty) [73]. She wrote that “this decision was one that no reasonable decision-maker could reach on the state of the evidence that LAA [Legal Aid Agency] had gathered... no data was available to connect small schemes with lack of viability” [93].

The Judge was similarly critical of equalities implications, writing there was “a real risk that... clients using the HPCD service will no longer have the same access to the 'wrap around' services that are not covered by Legal Aid and which may make all the difference to whether they end up homeless and destitute” [104].

The Judge concluded that LAA made a "facile assumption" to consider HPCDS in isolation when it is, in fact, a small but vital part of the legal aid, where such a change has knock-on effects on providers, other services and, ultimately, on vulnerable people for whom it exists. “It is beyond argument that users of the HPCD schemes disproportionately have protected characteristics… some of them will get a worse service overall” because, while duty desk services will remain, follow-on help to resolve underlying issues will be lost [100].

In her judgment, Mrs Justice Andrews DBE also noted that:

• There was no real sustainability issue to begin with: by LAA’s admission, 90 per cent of contracts, irrespective of size, were operating without any apparent difficulties [83]. Where providers did pull out, LAA had no problem in providing continuity of the local duty desk service [84]
• The case for change rested on 30 contracts handed back: however, these affected only 25 procurement areas [85], and there was no pattern for providers’ reasons for withdrawing [87]
• There was a general lack of evidence for changes: "No attempt was made in this case to work out the actual figures [the value of HPCDS contracts to withdrawing providers], let alone to carry out any form of financial modelling before the decisions under challenge were taken" [92]. In fact, LAA only calculated this after the Judicial Review hearing [87]
• Even in and of itself, LAA’s reasoning was flawed: "the introduction or retention of agents undermines the rationale for the change, as they deprive the new provider of most of the extra fee income which is the supposed incentive for taking on the larger contract" [91]
• The Justice Minister, tasked with considering and approving the change, was misled: “Far from endorsing what the LAA was proposing, as the Minister was led to believe, [professional groups] were strongly opposed to it” [37]. Elsewhere, the ministerial submission was also “brief”, “superficial” and “woefully inadequate to bring home to the decision-maker all the information necessary” [106].

Julie Bishop, director of the Law Centres Network, said: “We are very pleased with the judgment and thank our excellent legal team, Polly Brendon (PLP), Jason Coppel QC and Edward Capewell (11KBW), Law Centres, the Law Society for its generous support, and the many who have supported this case directly.

“This Judicial Review arose from our deep concern about the impact of changes, proposed for no good reason, on people about to lose their home. With early legal advice almost entirely cut, duty desks are key to reaching people who could not find or access prior help.

“How can legal aid be a public service that is fit for purpose if it only solves part of people’s problems? We are sick to death of changes being imposed that have no regard for the real-life situations people face. Rather than thinking up problems that do not exist, this is the problem that MoJ should solve.”

* Read the full judgement here

* Law Centres Network  http://www.lawcentres.org.uk/

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