Public Interest Lawyers v Legal Services Commission

The court held that the Legal Services Commission's verification of quality standards in the 2010 civil contracts tender was defective because the pre-contract verification process did not ensure compliance with the contractual supervisor standards (notably the case involvement requirement and the employed supervisor to case-worker ratio set out in clauses 2.28 and 2.35). This failure breached the equal treatment/transparency principle in the Public Contracts Regulations 2006 (reg. 4(3)) and the principle from the CJEU in EVN v Austria. The court also held that the outcome of the high security hospitals tender engaged the general disability equality duty in section 49A of the Disability Discrimination Act 1995 (as amended), requiring the Legal Services Commission to have due regard to the impact on vulnerable patients and to consider remedial steps. The court dismissed the challenge under section 4 of the Access to Justice Act 1999 concerning the lawfulness of the public law procurement decision itself.

Background and relief sought: The claimants challenged award decisions made by the Legal Services Commission in the 2010 contracting round for publicly funded public law and mental health services. They advanced three grounds: (1) defective verification of quality standards required by the tender and the contract, (2) breach of the general disability equality duty in respect of high security hospitals, and (3) breach of the duty under section 4 of the Access to Justice Act 1999 by impairing access to experienced public law firms. The claim sought judicial review relief and practical remedies to prevent unfairness arising from defective verification.

Procedural posture: First instance decision in the Administrative Court (Mr Justice Cranston). The claims arose after consultation, invitations to tender and the award of contracts, and before full completion of the pre-contract verification checks.

Facts and issues: A wide procurement exercise led to awards by non-competitive and competitive routes (public law non-competitive; high security hospital mental health work competitive). Key contractual requirements included supervisor standards (clauses 2.28 and 2.35) and a minimum supervisor-to-caseworker ratio (1:6). The verification process relied on self-declaration forms but was not completed before contracts began on 15 November 2010. The court considered: (i) whether the Commission breached its duties under the Public Contracts Regulations 2006 by failing adequately to verify compliance with quality criteria; (ii) whether the Commission breached section 49A DDA by failing to assess and take due regard of the impact on disabled patients in high security hospitals; and (iii) whether the Commission breached its section 4 Access to Justice Act 1999 duties in structuring and implementing the public law tender.

Reasoning and findings:

• On verification (ground 1) the court accepted that self-certification is permissible in principle but found that the forms and process did not specifically verify employment arrangements or satisfaction of clauses 2.28 and 2.35. Because verification was incomplete when contracts commenced and the forms could in practice validate supervisors who did not meet the contract's supervision or employment requirements, the procedure offended the equal treatment and transparency obligations under reg. 4(3) of the Public Contracts Regulations 2006 and the principle identified in EVN v Austria.
• On disability equality (ground 2) the court found that challenge to the consultation process was largely time-barred but that the outcome of the tender (which will force many high security hospital patients to change long-standing advisers) engaged the section 49A duty. The Commission must therefore have due regard to the impact on disabled patients and consider whether steps are required to ameliorate adverse effects; the court did not prescribe particular measures.
• On access to justice (ground 3) the court concluded that, although the tender produced an outcome reducing the number of new matter starts available to some specialist firms, the Commission had carried out consultation and taken a view reasonably open to it about using a non-competitive approach to extend geographic coverage and promote integrated services. There was no public law flaw sufficient to set aside the procurement under section 4 of the Access to Justice Act 1999.

Remedy: The court required the Legal Services Commission to ensure within a limited period that all contract-holders in public law and mental health meet the supervisory verification requirements; non-compliant contracts should be removed and any new matter starts redistributed pro rata among compliant firms.

Allowed in part. The court found that (i) the verification process for supervisor standards in the 2010 contracts was flawed and breached the equal treatment/transparency obligations under the Public Contracts Regulations 2006, requiring the Legal Services Commission to verify compliance and remove contracts where standards are not met and to redistribute matter starts pro rata; (ii) the outcome of the high security hospitals tender engaged the general disability equality duty in section 49A of the Disability Discrimination Act 1995, obliging the Commission to have due regard and consider steps to ameliorate adverse impacts on vulnerable patients; and (iii) there was no unlawful breach of the Commission’s duty under section 4 of the Access to Justice Act 1999 in the way the public law tender was conducted.