Public Interest Lawyers v Legal Services Commission

A contracting authority must apply tender criteria objectively and uniformly. Equal treatment requires unlike cases to be treated differently, so a failure to verify compliance with material quality criteria may unlawfully treat compliant and non-compliant bidders alike.

A public authority’s disability equality duty may be engaged by the outcome of a policy, even where the policy-making and consultation process itself is not unlawful. The authority must then gather relevant information, consult affected persons and consider whether mitigation is required.

Broad statutory duties concerning access to justice leave the contracting authority a substantial evaluative discretion. Intervention requires an established public law error.

Public Interest Lawyers challenged the Legal Services Commission’s 2010 contracts for publicly funded public law and mental health services. The claims concerned verification of supervisors’ quality standards, the disability equality duty in relation to patients in high security hospitals, and the statutory duty to secure effective access to legal services.

The public law contracts were awarded through a non-competitive process, while high security hospital contracts were competitively tendered. The claimants argued that the verification process was inadequate, that the impact on disabled patients had not been properly assessed, and that the allocation of public law matter starts impaired access to experienced providers.

1. Verification and equal treatment. The principle of equal treatment under Public Contracts Regulations 2006, implementing article 2 of the Public Sector Directive, requires tender criteria to be applied objectively and uniformly. The principle applies where the authority could verify compliance but fails to do so. Self-certification may be an appropriate initial measure, but it does not remove the duty to verify material criteria.
2. The verification process was inadequate because it did not specifically establish the supervisors’ employment arrangements, supervisory experience or compliance with the 1:6 supervisor-to-caseworker ratio. The process was incomplete when the contracts commenced. This breached the equality standard.
3. Disability equality duty. Under section 49A of the Disability Discrimination Act 1995, due regard involves relevance and proportionality. The authority should gather relevant information, consult affected stakeholders and consider whether changes are needed. An equality impact assessment is not invariably mandatory, but may be an appropriate means of discharging the duty.
4. The original tendering process was not unlawful under section 49A. However, its outcome—requiring many high security hospital patients to change long-standing legal advisers—engaged the duty. The Legal Services Commission had to consider whether steps were required to ameliorate the adverse impact.
5. Access to justice. The broad duties in section 4 of the Access to Justice Act 1999 confer substantial judgment on the Commission. The court could intervene only for an established public law error. The Commission had consulted extensively and was not legally required to predict the eventual level of oversubscription. The access to justice challenge therefore failed.
6. The Commission was required to verify compliance with the supervision standards within a limited period, remove contracts held by firms that failed to comply, and redistribute new matter starts pro rata among compliant firms.

First-instance judicial review claims. No prior appellate decision is stated in the judgment.