R (Law Centres Federation Limited t/a Law Centres Network) v The Lord Chancellor

The claimant sought judicial review of two decisions by the Lord Chancellor and the Legal Aid Agency to consolidate Housing Possession Court Duty (HPCD) scheme areas and to introduce price-competitive tendering. The court held that the decision-maker failed to discharge the Tameside duty to make reasonable inquiries before reaching the policy decision because the assumption that small schemes were not commercially viable and that larger contract areas would improve sustainability was not supported by adequate evidence or financial analysis.

The court also held that the public sector equality duty in section 149 of the Equality Act 2010 was not complied with: ministers were not provided with sufficiently clear, unambiguous information about the likely adverse effects on not-for-profit providers (notably Law Centres) and on clients with protected characteristics, nor was there adequate consideration of how harms to those groups could be avoided or minimised.

As a result the court quashed the impugned decisions and remitted the matter to the defendant for reconsideration.

Background and parties. The claimant is the national membership body for 45 Law Centres. The defendant (the Lord Chancellor acting through the Legal Aid Agency) decided, following a consultation, to reduce the number of HPCD contract areas and to introduce price-competitive tendering. The schemes provide on-the-day face-to-face legal advice, assistance and advocacy to tenants in possession lists. The decisions were implemented by publication of the tender documents.

Nature of the claim and relief sought. This was a claim for judicial review challenging (i) the adequacy of the decision-maker's inquiries before deciding to consolidate scheme areas and adopt price as a tendering criterion (Tameside duty/irrationality), and (ii) alleged failure to comply with the public sector equality duty in section 149 of the Equality Act 2010. The claimant sought quashing of the decisions and remittal for reconsideration.

Issues framed by the court. The court addressed (a) whether the Legal Aid Agency had made sufficient inquiries and had an evidential basis to conclude that small HPCD schemes were commercially unsustainable and that larger contract areas would improve sustainability; and (b) whether the defendant had given "due regard" to equality considerations affecting service users with protected characteristics and to the particular position of not-for-profit providers such as Law Centres.

Court's reasoning and subsidiary findings. The court concluded that the LAA relied on assumption and anecdote rather than evidence. No adequate financial analysis or modelling had been performed to connect small scheme size with lack of viability, and the LAA had not considered realistic scenarios (for example, the effect of using agents, which would distribute fee income away from principal contractors). The consultation responses, which mostly opposed consolidation, should have prompted further inquiry but did not. On the equality duty the court found that material information was not placed before ministers: the summaries understated the risks to Law Centres and the consequences for clients (including harms to those with protected characteristics arising from loss of "wrap-around" services). The later Equality Impact Assessment (EIA) was carried out only after consultation and did not remedy the earlier failure. The court therefore found both a breach of the Tameside duty and a breach of the PSED.

Remedy. The court quashed the impugned decisions and remitted the matter to the defendant for reconsideration, explaining that the failures were sufficiently serious and material to require reconsideration notwithstanding practical consequences of the tender process.

The claim succeeds. The court held that the defendant failed to discharge the Tameside duty to make reasonable inquiries and also breached the public sector equality duty in section 149 of the Equality Act 2010. For those reasons the impugned decisions were quashed and the matter remitted to the defendant for reconsideration.