Will tender contracts survive government’s legal aid strategy review?
Over the last four months I have been kept busy writing about the outcomes of the Legal Services Commission’s tender exercises. First there was crime, followed by mental health, immigration, family and social welfare.
Each exercise has been beset by problems and delay, and produced increasingly bizarre outcomes displaying no consistent strategic aim on the part of the LSC.
Perhaps surprisingly – given the long-term aim of both the previous and current governments to drastically reduce the number of criminal firms – only 5% of existing firms were not offered new contracts.
The mental health and immigration tenders both produced perverse results, with many large experienced firms facing closure after being offered no contract or contracts too small to be economically viable.
At the same time, other smaller and inexperienced firms were offered contracts that they lack the capacity to fulfil, after submitting speculative bids.
And despite an overall reduction in the number of mental health matter starts in London, the number of providers has almost doubled, with the LSC offering contracts to 34 new providers.
The number of family providers has dropped by about 46%, from 2,400 to around 1,300, and while the results for social welfare have yet to be finalised, the LSC said early indications are that 70% of existing providers are likely to receive contract offers.
This result has come about despite the assurance given to the Law Society in January in a letter from Carolyn Regan, the then chief executive of the LSC, that ‘it is not our intention that the tender round should significantly reduce the provider base’.
The result of all this is huge disruption for legal aid providers. While some are now working towards shutting departments, laying off staff or closing down completely, others are desperately trying to recruit staff and sort out new offices.
All this upheaval is going on while the Ministry of Justice is carrying out a review of legal aid with a view to achieving the enormous budget cuts demanded from it by the Treasury.
In the autumn (maybe around the time the new civil contracts begin in October) it will publish what are likely to be major changes to the delivery of legal aid, including significant cuts in its scope, and the fees provided.
This will almost inevitably mean that the government exercises the power contained in the contracts to terminate them with six months’ notice, necessitating further tendering exercises and more uncertainty and disruption for firms.
It seems ridiculous that firms have been put through this lengthy, expensive and shambolic process, only for it to be repeated after the spending review.
Would it not have been more sensible to put in place some form of interim arrangements or extensions to the current contracts?
At the very least firms could have been given some idea of the direction of travel of the government and LSC to help them to plan their futures. Instead, they have been left in a state of limbo and disarray.
Comments
Cuts
What needs to be factored into the already delayed timetable is the fact that the number of appeals will be greater than anticipated due to neagtive outcomes for most established firms.
The original published timetable is woefully delayed.The Commission also need to validate new entrants 8 weeks before the Contract Start Date.By my reckoning that should start August 14th which means that it will be in the middle of the Appeal period for some firms.
Chaos!
Cuts and Care Proceedings
I didn't get a contract despite 17 years experience of Care Proceedings. I think the appeals process is likeley to be a sham. For me that's sad but having seen this coming I have alternative plans in place.
My concern is for the children and families in proceedings where there will be delays due to difficulties in finding a solictor, poor representation from the speculative bid firms, increased pressure on the excellent firms who did manage to get a contract - and due to the closure of courts.
I'm not quite sure where any public money will be saved as a consequence of the tender process.Things just get worse, sadly.
So, it's "Good Luck" to my colleagues who are still fighting the good fight.
Tenders
In case anyone is confused please be aware that theMoJ/LSC doesn't care about Solicitors or those who would seek legal advice so long as money is saved and the Legal Aid budget reduced.
As far as MoJ is concerned there are too many solicitors and many solicitors could fill the gap left by others. Conflict, lack of local providers, dumbing down of legal advice and an over reliance on Accreditation andPanel membership which, in truth proves nothing, matters not to civil servants obsessed with cost and devoid of any concept of worth.
Are there any indications where future cuts will be made?
The current position is certainly bad and does deserve serious discussion and consideration. However the real issue has to be what will the landscape for publicly funded firms look like after Ken Clarke slashes the public funding budget on a truly gargantuan scale -- which will make previous cutbacks [which seemed devastating at the time] look like mere fiddling. Are there any hints or indications which part of the budget these future cuts will hit and how?
Such a incredible strategies
Such a incredible strategies of the LSC! In all fairness, its been a long time since they started the cuts in the number of criminal firms but it seems nothing really works and now they are cutting another agencies. But I couldn't figure out whats this all about?
What did they really intend?
The assurance given by Carolyn Regan that it was not the intention of the LSC to reduce the number of suppliers significantly tells me that either there was a deceit on the part of the LSC or that they did not really know what the result of their process was going to be.
Had they known that the cull was going to be so savage, they could have told us. To do otherwise was to continue and endorse the deceit.
The position of the LSC now seems to be that they are confident that they now have a sufficient supplier base able to deliver a quality service. That tells us that this is what they intended and had planned for. Or is it that they do not want to face the shame and embarrassment of confirming yet again that they got it wrong and remain unfit for their purpose, and deal with that by saying this is what they intended and had planned.
My suspicion is probably clear - I do not think that they know what they are doing. This is corroborated by the outcome of the criminal bid that left so many with a contract when the LSC had made it clear that the real cull was to be criminal solicitors. That did not happen. Are the LSC now going to say that the number of criminal suppliers that they now have, is what they wanted?
In either event, whether there is now pretence or whether they continued to mislead us - there is deceit.
Is this what was intended?
What the M.o.J. appear to be considering is dishing out criminal contracts to a much smaller number of large suppliers.
This is what the Law Society appear to have accepted, and the legal aid minister, that nice Mr Jonathan Djanogly M.P. did not deny, when they were interviewed by Joshua Rozenberg on BBC r4's 'Law in Action'.
Is this what they intended
In fairness, I think that the ministry of justice have always made it clear that they want to have a very limited number of firms conducting criminal work. However, they have become unstuck by the manner in which they have striven to achieve this objective. This is partially why the legal services commission both deemed to be unfit for this purpose because it could not effectively pursue policies designed to achieve the objective that hand. I believe that the objective was set around 2005. The reason I know this is because I was not a partner in an very large criminal practice in Birmingham city centre. I think the ministry of justice have already made it clear that they intend to pursue the objective. I think we ought to wait until October 2010 when the ministry of justice will have concluded their review on legal aid. Savage cuts are anticipated that no reference to the consequences on practitioners who after all are human beings notwithstanding public opinion. Plan alternatives now if you have not already done so.
Is this what they intended
In fairness, I think that the ministry of justice have always made it clear that they want to have a very limited number of firms conducting criminal work. However, they have become unstuck by the manner in which they have striven to achieve this objective. This is partially why the legal services commission was deemed to be unfit for this purpose because it could not effectively pursue policies designed to achieve the objective at hand. I believe that this objective was set around 2005.
I think the ministry of justice have already made it clear that they intend to pursue the objective. I think we ought to wait until October 2010 when the ministry of justice will have concluded their review on legal aid.
Savage cuts are anticipated without reference to the consequences on practitioners who after all are human beings notwithstanding public opinion.
Plan alternatives now if you have not already done so!
Stand up for ourselves and stand together
All us legal aid practitioners seem to have adopted a fatalistic air, almost as if we are embarassed that we spend public money assisting those in need. There is absolutely no basis for this, especially in the civil categories which have suffered so badly last week, and we should be proud of the assistance and representation we provide. The Guardian today carries a timely reminder of the consequences of failure to access justice.
Also, the LSC's agenda is to divide and rule - we must do what we can to support each other rather than cut each other's throats in an orgy of competition over the ever-diminishing legal aid fund. Because we accept the logic of the market legal practitioners have often done the LSC's job for them by accepting such tender processes.
There is another way, and initiatives like Young Legal Aid Lawyers, the ilegal online forum at http://legalaidandme.proboards.com/index.cgi? and campaigns like Save Legal Aid show how it is possible to all pull in the same direction.