Public Interest Lawyers v LSC  EWHC 3277 (Admin)
(1) The verification process following the LSC's public law and mental health tendering process fell short of what was required by the Public Contract Regulations 2006. No objection was taken, nor could it be, to self-certification. But the self-certification supervisor forms did not require supervisors to confirm specifically the nature of the employment arrangements between them and the organisation or whether they had complied with the supervision standards set out in the contract, in particular the supervision experience or training course requirement (clause 2.28) and the 1:6 supervisor ratio requirement (clause 2.35). There may therefore be a number of firms with contracts who did not meet the supervision criteria, for example who have an external non-employed supervisor, or a part-time supervisor who is not employed for sufficient hours. The LSC must ensure, within a limited period, that all firms currently comply with the supervision standards; those who do not must have their contracts removed and the matter starts redistributed pro rata. (2) The disability equality duty challenge to the HSH contract under s49A Disability Discrimination Act 1995, as originally raised, was essentially a challenge to the consultation and the formulation of the tender proposals; as it was brought eight months after the proposals were available, it was out of time. However, the outcome of the of the tender exercise was only recently known: in particular, senior psychiatrists had given evidence of the distress changing solicitors would cause to a considerable number of patients in the light of the reduction in number of solicitors with contracts (of 98 existing providers, 43 did not bid; of those who bid, six firms were successful at Ashworth, and five at each of Broadmoor and Rampton). The outcome engaged the s49A duty so the LSC must gather information, consult with interested stakeholders, and have due regard to whether they need to take steps to ameliorate the result of the contracting exercise. (3) The public law tender, and the reduction in matter starts, met the LSC’s legal obligations under s4 Access to Justice Act 1999.
A further hearing was held on 21/12/10. As a consequence of the case, the LSC sent out more detailed self-certification forms to firms, and are considering how to approach the HSH equality duty issue. One answer would be to relax the rules on those without HSH contracts continuing to represent HSH patients: at the moment they can only carry out remainder work and, in certain circumstances, follow patients who in future are transferred into high security.
The final order provided that:
1. Permission to apply for judicial review in claims CO/11265/2010 and CO/11267/2010 is granted.
2. In relation to the contracts for the provision of publicly funded services for mental health and public law, the Defendant shall, subject to the outcome of any formal review requested by a provider dissatisfied with a decision on verification, complete the verification process within 6 weeks of the date hereof, and in particular shall
- (a) request all persons awarded a contract for mental health and public law confirm that they comply with clause 2.28 and 2.35 of the Standard Civil Contract;
- (b) remove the contract of any firm found not to comply with the requirements in clause 2.28 or 2.35 of the Standard Civil Contract;
- (c) redistribute any NMS to those firms who do meet the verification requirements pro rata to their original bids.
3. It is declared that the outcome of the tender process for the high secure mental health contract engages the duty under section 49A of the Disability Discrimination Act 1995.
4.The Defendant do pay 70% of the Claimant’s costs in claims CO/11265/2010 and CO/11267/2010 and HX10X04109 & HX10X04110 to be subject to a detailed assessment if not agreed.
5. Liberty to apply.
PIL v LSC