A High Court judge has delivered a devastating crtitique of the UK Legal Aid Agency over its moves to change the way people facing eviction or repossession of their homes receive legal help. A crucial part of his argument for the change was based on a claim that was “both inaccurate and misleading” – or, as will be seen (and thankfully this blogpost can be less circumspect in its language), what is commonly known as “untrue”. The LAA had claimed two lawyers organisations backed the changes. In fact they had not been asked for their view.
The arguments of the Ministry of Justice and the Legal Aid Agency used to justify the change were “based on assumption or conjecture or, at most, ‘anecdotal’ evidence from a handful of un-named providers [of the legal services]”, said Mrs Justice Andrews, hearing a judicial review application brought by the Law Centres Network (pdf) in the High Court.
The matter at issue was the Housing Possession Court Duty (HPCD) schemes that seek to ensure on-the-day legal advice and representation for people in court facing repossession and eviction. They are largely funded by legal aid to the tune of £3.6m a year – 0.2% of the legal aid total – and in many cases not-for-profit organisations, including local law centres, have the contracts to do the work.
Around 2014 the Legal Aid Agency suggested the schemes should be subject to price competition for the first time and re-tendered in a more consolidated form – ie a reduced number of schemes covering wider areas rather than focused on local courts. (At around this time there were were 117 HPCD schemes covering 167 courts; this was to be reduced to less than 50).
The argument was that some providers had withdrawn from offering schemes for economic reasons and the change would promote “sustainability” (that weasel word meaning anything and nothing). But Andrews found no evidence for either contention. In reality:
• There was “no, or no proper, evidential foundation” for statements suggesting small schemes were unsustainable;
• “no explanation was given for why it was felt that larger contracts would provide for greater sustainability”;
• the LAA simply said: “Moving to larger contracts we hope will provide for greater sustainability, increased efficiencies in the delivery of services, greater economies of scale and better value for the tax payer” (emphasis added);
• the LAA initially carried out no calculations of the financial value of the HPCD scheme contracts to the providers. When it did so for the court case “there was no obvious pattern” to indicate lack of revenue was the reason for withdrawal from schemes;
• the Ministry of Justice’s head of the Civil Legal Aid Policy, Thomas Bainbridge, said of the small schemes “these are unlikely to be economically viable for providers” – but without any evidence showing that. “The lack of economic viability was an assumption,” says Andrews.
• When punting the changes to the Ministry of Justice, the LAA claimed the Law Society and the Legal Aid Practitioners Group were on board with it. This was untrue.
The proposed change was happening during a period of “consolidation” of courts – closures that were also reducing the number of HPCD schemes. In the event, the change the LAA wanted was to reduce a little under 100 schemes based on courts to 47 schemes mostly covering larger areas or multiple cities.
In 2016 providers of three schemes had withdrawn – and the Legal Aid Agency put together a report on the future of HPCD schemes that noted: “anecdotal evidence from providers on the reasons for withdrawal are generally that the contracts are not financially viable, due mainly to the low volume of work in conjunction in some instances with the amount of travel required to cover Schemes”. [Travel costs are not reimbursed.] The plan, therefore, was to create larger contracts for HPCD schemes “in order to make the contracts more attractive and sustainable”.
Judge Andrews’ assessment of the case
Judge Andrews noted:
“Prior to the decisions under challenge, 64% of HPCD scheme contracts were operated by not-for-profit organisations (a fact which is not mentioned in any of the Ministerial submissions). Of these, the 12 Law Centres held approximately 16% of the HPCD scheme contracts and represented 20% of the provider base.” Para 24
She points out that the word “sustainable” was used in two different ways in discussions of this plan:
a) as financially viable for the providers (many being profit-making); or
b) as maintaining the service for its users.
One may assume that the priority was financial sustainability since, according to the latter meaning “the Claimant’s [Law Centres Network] uncontradicted evidence establishes that there were never any practical problems in maintaining the service to clients under the existing HPCD schemes, even when providers pulled out of the contracts”. Those gaps were soon filled.
The problem with the proposed new contracts, Andrews points out, was that, for providers, there would be higher administration costs, higher travel costs to get lawyers around the larger areas covered, and the possibility that some of the work would have to be farmed out to local agents (often law centres no longer among the principal providers, having lost the tender or withdrawn), thus reducing profits. Andrews says:
“There is no explanation given in this [Legal Aid Agency], or any other document in which the thinking behind the policy is articulated, of why the LAA thought that larger scheme areas would be regarded as more attractive by providers, if those providers would not be receiving all the income generated from the postulated additional volume of work.” Para 32
The evidence was “based on assumption or conjecture or, at most, ‘anecdotal’ evidence from a handful of un-named providers”. The Legal Aid Agency told the Undersecretary of State for Justice it had met the Law Society and the Legal Aid Practitioners Group to discuss the proposals, who had “accepted the case for more sustainable schemes, and agreed with the outline principle of fewer, larger schemes” .
This turns out to have been “both inaccurate and misleading”. Andrews says: “The true position was that the 2 November meeting was a private briefing about the LAA’s intentions, rather than a meeting to canvass views about the merits of the proposition.”
The two bodies’ views were not sought or obtained. Nor could the representatives of those bodies discuss the proposal with other members since the meeting was confidential. So: “The person who drafted [the statement] had translated the absence of articulated opposition into positive support.” Enforced silence, apparently, gives consent.
The Ministry of Justice also decided not to carry out an Equality Impact Assessment (EIA) before the consultation into the changes between January and March 2017, with Mr Bainbridge saying there would be no impact since individuals with protected characteristics (such as the elderly, the disabled, those with mental health difficulties, single parents and black and minority ethnic service users) would have to travel to the same court, whatever HPCD scheme was in place – a “facile assumption” according to Andrews. “Mr Bainbridge is silent on the question whether any other potentially adverse impacts on people with protected characteristics were even considered before the consultation; one purpose of an EIA is to find out if they exist.”
Most respondents to a consultation on the change were “fundamentally opposed to the proposals” (48 out of the 63 replies, with only 7 positive responses). The MoJ went ahead anyway, having been told by the LAA that the matter was urgent because of the need to “enable the LAA to launch the contract consultation and begin market engagement”.
As a result of the tendering process in May 2018, law centres took only three of the 47 contracts. Including where they act as agents, they were left with providing only 10% of HPCD schemes (instead of 16%) and the overall percentage of such schemes delivered by not-for-profit providers was reduced to 46% (from 63%).
There is evidence some of the law centres acting as agents have been required to pay administration fees to their principals – the organisations who successfully tendered for the work but had to farm some of it out. Presumably this is to get over the fact that using agents is inefficient and “unsustainable” for the principals even though it is crucial to the Legal Aid Agency’s and the Ministry of Justice’s rationale for the change.
So we can see what has happened: The Ministry of Justice is dedicated to the pile ’em high Tesco-style franchising system for delivering the state’s legal services. It is convinced by a simplistic notion that efficiencies accrue to large legal firms or conglomerates which will therefore seek to bid down one another to gain MoJ contracts.
The Housing Possession Court Duty schemes were a tiny part of MoJ provision, but could not be left out. Money-saving does not seem to have been the initial impetus behind the changes since the amounts involved are tiny already and financial cuts were not envisaged from the changes. But even the small bit of profit the schemes might potentially generate was to be shovelled toward private firms and away from the non-profit sector, including law centres – making the latter less “sustainable” in the process by denying them a small but vital revenue source.
This is why the Legal Aid Agency made no mention of the non-profit sector in all this – it is not interested in non-profit makers and sees sustainability only in terms of definition a) above: profitability – not in terms of maintaining a system of expert and dedicated providers in a specialist service to vulnerable people. It was throwing the bigger firms a tit-bit that they might be able to subsume into their wider business – and with the handy side-effect of turning the screw on law centres with their non-profit and, dare one say it, anti-establishment ethos.
Given the lack of actual facts and figures on which the Ministry of Justice based the decision to consolidate schemes, Andrews concluded:
“I am therefore driven to the conclusion that this decision was one that no reasonable decision-maker could reach on the state of the evidence that the LAA had gathered and in the absence of further inquiry.” Para 93
On the Equality Duty issue Andrews said:
“The evidence falls a long way short of demonstrating that any Minister (in person) gave due regard to the equality impact of the proposed changes . This is because the information collated by the LAA and placed in summary form before the Minister failed to identify in sufficiently unambiguous terms all the adverse effects that the proposed changes could have on users of the service (whose constituents contain a disproportionate number of people with protected characteristics under the Act).” Para 105
Given the tendering process was far advanced, the MoJ lawyers urged that Andrews should not quash the decision to reduce the number of HPCDs. Andrews disagreed, saying: “a wrong should not go without a remedy save in very exceptional circumstances, and this is not the type of case in which to deny the successful Claimant the normal order”, adding: “The decisions must be quashed and the matter remitted to the Defendant [MoJ] for reconsideration.”
• Ministery of Justice HPCD consultation document is here.
• Here is the MoJ’s response to consultation: Commissioning sustainable services.
• The Legal Action Group’s report on the case is here.
The case: R (Law Centres Federation) v Lord Chancellor.
Note on the law: Judicial review is not an exercise in establishing a bad decision has been made and replacing it with a better one (albeit Mrs Justice Andrews clearly believes a bad decision has been made). In a case like this, the judge is looking at the rationality of the decision ie “whether it is so unreasonable that no reasonable person acting reasonably could have made it” (Associated Provincial Picture Houses Ltd v Wednesbury Corporation (1948) 1 KB 223). That gives the authorities a wide discretion to arrive at a fairly unreasonable decision – but they must show nevertheless that they have done so taking relevant matters into consideration. So:
“The court should not intervene merely because it considers that further inquiries would have been sensible or desirable. It should intervene only if no reasonable … authority could have been satisfied on the basis of the inquiries made.” (Neill LJ in R v Royal Borough of Kensington and Chelsea ex p. Bayani (1990) 22 HLR 406, cited by Laws LJ in R (Khatun) v. Newham LBC  QB 37 at .
So arguably, if the MoJ starts from simplistic economic assumptions (bigger is better), fails to investigate the likely real-world consequences of its decision and ignores the results of the (somewhat rushed) consultation, it can be said to have acted unreasonably. Hence Jason Coppel QC for the claimant Law Centres Federation argued that:
“Here, the court is concerned with policy decisions about the provision of state-funded legal advice to some of the most vulnerable people in society, and that in that context the duty of inquiry was an onerous one and that the court should be astute to ensure that it has been properly discharged.” Para 75
Andrews took the view that even if the obligation were less onerous than Coppel suggested, “the defendant cannot satisfy its Tameside duty by making no relevant inquiries at all, or by confining its inquiries to reliance on ‘anecdotal evidence’ from, at most, a handful of former service providers.” The Tameside duty derives from Secretary of State for Education and Science v. Tameside Metropolitan Borough Council  AC 1014 and is the duty of a decision-maker to take reasonable steps to acquaint itself with relevant material.
The HPCD and law centres
Mrs Justice Andrews, notes: “The Legal Aid Sentencing and Punishment of Offenders Act 2013 (“LASPO”) drastically reduced the areas of law and the types of work for which civil Legal Aid was previously available. Many firms of solicitors have ceased to do civil Legal Aid work because it no longer provides sufficient income for them. There are areas, such as Cornwall, that are aptly described as ‘Legal Aid deserts’. Even in the rare instances in which it is still available, Legal Aid is unlikely to be sufficient to meet all the needs of the client.”
Andrews said law centres provided an invaluable resource: “The work they do goes beyond addressing the immediate crisis faced by a client and seeks to find a means of addressing the underlying factors which led to that crisis.”
As well as this being a good principle of justice, it is beneficial to the courts since “by saving court time and resources that would otherwise be needed to ensure the fair treatment of litigants in person (and their dependents) facing the imminent loss of their home”.
Additionally, of course, any person not evicted from their home thanks to facts and support offered by a legal representatives is a person who is less of a burden to society and the state. “The usual aim of the legal representative will be to obtain an adjournment for a short time – typically 14 days – to enable steps to be taken to resolve the matter in a way that prevents the client from losing their home. Such schemes therefore provide a vital service for vulnerable individuals who face immediate homelessness.”