A High Court judge has today branded some of the criteria used by the Legal Services Commission in its recent social welfare tender ‘utterly absurd and totally irrational’.
Mr Justice Collins also said the ‘tick-box’ exercise adopted by the LSC was not appropriate for tendering to provide a public service that is designed to ensure access to justice.
Collins made the comments during a hearing in relation to a judicial review of the social welfare tender process which has been lodged by Birmingham firm The Community Law Partnership (CLP).
CLP claimed the criteria and scoring system used by the LSC to award contracts was irrational, because the system rewarded firms that took more appeals to the upper tribunal. It said firms that were more successful in the lower tribunal were penalised.
CLP, which specialises in housing law, had unsuccessfully appealed against the LSC’s decision not to award it a contract.
The judge said: ‘I am bound to say this is a dreadful decision and on the face of it the approach [taken by the LSC] is totally irrational.
‘How can it be rational to penalise a firm that takes fewer cases to the upper tribunal, when any decent firm will do its best to make sure it doesn’t have to appeal?’ he said.
Collins added: ‘If firms have a good record of ensuring they succeed in the lower tier tribunal, then appeals to the upper tribunal won’t be needed. To adopt a criteria which looks to the number of appeals to the upper tribunal and punishes those who do not need to appeal to it, because they are successful in the lower tier tribunal, is utterly absurd and totally irrational.’
He said: ‘There is ample evidence that this is a highly reputable and utterly efficient firm that is approved of by the judges, and you’re going to ruin it. You’re bringing it to an end as a result of this decision. How can you justify that? You can’t.’
Collins asked counsel for the LSC, Peter Oldham QC, if a firm’s reputation could be taken into account or whether it was simply a ‘tick-box exercise’.
Oldham replied: ‘I’d hope they’d take everything into account,’ but said the LSC had to comply with public contract law and could not exercise discretion.
Oldham said: ‘The tender invitation went out last year. If they wanted to argue about the criteria they should have done it then, not now.’
But the judge said: ‘Those tendering are entitled to take the view that access to justice criteria will be taken into account and discretion used, rather than just box ticking.’
Collins adjourned the hearing and advised the LSC to ‘consider carefully’ its position. ‘If you fight this and lose it, you could set a precedent,’ he warned.
Collins said that if the LSC’s decision not to award a contract to CLP remained unchanged, he would expect a judicial review to succeed.
‘I take the view that it’s not only arguable, but it would be difficult to dispute that the criteria relied on to mean this firm didn’t get a contract is totally irrational,’ he said.