Greenwich Community Law Centre, R (On the Application Of) v Greenwich London Borough Council

The claimant is a law centre (“Greenwich CLC”), providing free legal advice and assistance. It challenges the decision of the defendant local authority (the “Council”) to cease funding it, with effect from 11 November 2011. In broad terms it contends that in doing that the Council failed to have regard to the consequences, in particular the impact of the decision on its existing vulnerable clients. It also challenges the decision-making process as regards aspects of the work which the Council decided to fund. That process resulted in the allocation of funds to Plumstead Community Law Centre (“Plumstead CLC”) and Greenwich Housing Rights respectively. The Council denies that the decision is unlawful. Moreover, it contends that since Plumstead CLC and Greenwich Housing Rights have received funding and taken over the services formerly provided by Greenwich CLC, any remedy which interfered with that position would be detrimental to third parties and highly prejudicial to good administration.

Greenwich Community Law Centre was established in 1984. Like other law centres in this country it provides free legal advice and assistance to some of the most vulnerable people in its community, in this case in the Greenwich area of London. Its work has been mainly in the fields of immigration, welfare benefits, housing, employment and debt. The law centre is based in the western part of Greenwich borough. For the last 15 years or so it has provided outreach services. As well it gives advice by telephone and receives enquiries by telephone and email. In addition to funding from the Council, the law centre has received income from the Legal Services Commission, the Equalities and Human Rights Commission and some private funders. Its premises have been occupied rent free from the Council.

From about 2007 until April 2011 Greenwich CLC was a member of a consortium called Greenwich Legal Advice Services (“GLAS”). The other members of the consortium were Greenwich Citizens Advice Bureau, Plumstead CLC, Meridian Money Advice, and Greenwich Housing Rights. The first is based in Woolwich, which is near to the centre of the borough, with a branch in Eltham. Woolwich is also where Greenwich Housing rights is based. Plumstead CLC is in the eastern part of the borough. During the period to April 2011, the Council funded GLAS to provide legal advice services. As part of that arrangement, Greenwich CLC received around £199,000 per annum to provide advice services in the areas of work mentioned. Funding being consortium based, clients with a particular problem could approach a range of organisations across the borough.

In February 2010 the Council’s cabinet agreed a draft “third sector commissioning framework for 2011-2013”. The third sector includes charities and community and voluntary groups. Under it consultations occurred with the third sector in the first part of that year. In mid July bids were invited. GLAS bid as a consortium, the only bid received for legal advice services. It had been intended that the Council’s overall voluntary sector grants budget for the third sector for 2010-2011 would be some £7 million. Following the announcement of the government’s comprehensive spending review in October 2010, however, there had to be significant reductions in the Council’s budget for grants. On 3 December 2010 the deputy leader of the Council, Cllr. Peter Brooks, wrote to all third sector organisations explaining the anticipated reductions and adding:

“Organisations are therefore reminded that their current funding arrangements will expire on the 31^st March 2011, and that you will need to take whatever appropriate legal steps are needed for dealing with any adverse impact on your organisation as a result of the expiry of funding. For instance, this may include issuing precautionary notices of redundancy to employees by 1 January 2011 where this is appropriate for you to do so.”

Ultimately the Council proposed to reduce funding for the third sector to some £4,841,000, to be augmented by an additional £683,000. That meant a reduction of just under 30 percent, which was comparable to the reduction applied to the Council’s budget as a whole.

The Council’s cabinet made provisional decisions on the allocation of its third sector grants and commissioning budget on 25 January 2011. It agreed to defer final decisions until its March meeting. It requested the Council’s Overview and Scrutiny committee to undertake an examination of the process in the meanwhile, including the assessment of bids and decision-making process, and of its provisional funding proposals. At this point there was an initial equality impact assessment. Cabinet agreed that a full equality impact assessment, informed by consultation and representations, should be presented at its March meeting. Following the cabinet meeting representations were invited from the voluntary sector affected by the provisional funding decisions. Greenwich CLC, as part of the GLAS consortium, made a submission.

The Overview and Scrutiny committee met and prepared a report. It agreed with the cabinet’s provisional funding decisions with the exception of a number of what it regarded as priority areas, where the cabinet was asked to reconsider. One of these was in relation to the GLAS consortium. Overall, the Overview and Scrutiny committee concluded that the commissioning process was sufficiently robust and provided good support for groups to enable their participation in the bidding process. However, there were areas identified for further improvement, including equality impact assessment. The committee recommended support and guidance to third sector organisations, which should take account of issues relating to the cessation of funding “of some smaller groups and the impact which could arise on some locally based and socially isolated groups”. The committee recognised that interim funding would be necessary until final allocations later in the year.

At its 15 March 2011 meeting, the Council’s cabinet agreed the recommendations of the Overview and Scrutiny committee. Cabinet delegated to the Director of Culture and Community Services, in consultation with the deputy leader, the decision to agree interim provision for legal advice services. It also agreed that there should be re-commissioning in the advice and legal services area, with a further report to be presented to cabinet. The explanation for this re-commissioning decision for legal advice services was set out in a later report to the Overview and Scrutiny committee (dated 12 May 2011):

“The previous strategic review of legal advice services, approved by Cabinet in 2008, had sought a single provider for a unified and fully integrated service across areas of law and advice need. The aim was to deliver a comprehensive, accessible service in the most efficient way possible, mirroring the Council’s own service modernisation principles. However, no single provider applied to deliver this approach and the attempts to develop an effective local consortium have now twice failed to satisfy the Council’s requirements. In particular, the local consortium has not been able to put in place a single governance framework, a shared approach to performance management or effective collaboration on delivering efficiencies.”

The Council’s Equality Policy requires equality impact assessments for all proposed new plans or policies for which significant changes are proposed. There was an equalities impact assessment before cabinet on 15 March 2011. It was said to meet the recommendations of the Overview and Scrutiny committee, in particular that it take account of issues relating to the cessation of funding of some smaller groups and of the impact which could arise on some locally based and socially isolated groups. The equality impact assessment noted that the reduction in the grant budget and associated funding would inevitably have an impact upon residents. No viable bids having been received for the provision of legal and welfare advice services, the equality impact assessment recommended that financial provision be earmarked, and that there be a re-commissioning of services. In the light of financial pressures and the difficulty in commissioning it further recommended that Council funding be augmented by including the Council’s own advice services in order to stimulate a more viable response. Representations from GLAS were noted. These were that the reductions in funding would reduce the number of people able to access advice services, and that national welfare and housing tenure reforms, and potential job losses arising from the economic climate, would lead to an increased demand for advice. GLAS had also stated that there was a potential for a disproportionate impact in respect of race, gender, disability and age, since 74 percent of their clientele belonged to black and minority ethnic groups, 21 percent were disabled and 22 percent were lone parents. The assessment identified as mitigating action that the re-commissioning of legal advice services would improve efficiencies by reducing duplication and costs within the sector.

In the light of the re-commissioning exercise, the Council signed a six months’ interim agreement with Greenwich CLC on 1 April 2011 under which Greenwich CLC was to receive £64,000. Its obligation was to offer:

“a coordinated accessible, comprehensive and high quality legal and welfare advice service for the benefit of Greenwich residents who experience financial and social exclusion. The aim of the funding will be to alleviate poverty and discrimination through the provision of free, high quality specialist legal advice”.

The interim agreement provided that the law centre was to do this by employing suitable, qualified staff throughout the period. In turn the Council was to act in a proportionate and reasonable manner and pay due regard to the legitimate interests of the organisation. Under the agreement Greenwich CLC was to have in place robust contingency plans to ensure that the funded service would be maintained in the event of any potential transition to other providers. In the event that the contract was terminated, and a new provider was to take over management of the service, the law centre would “work proactively with Council and the new provider to ensure a smooth transition for service users and staff, over to the new provider”. The Council undertook to provide support throughout the process. All parties would work together to ensure there was as little disruption as possible to service users and staff.

The service specifications set out in schedule 1 of the interim agreement underlined that the law centre’s clients were expected to be vulnerable. The service was to be provided throughout the borough in ways promoting access for clients and to ensure that vulnerable priority groups would be reached. Under the heading “equality of access to services”, the schedule insisted that the service must be available to all clients and users. The provider had to ensure that particular efforts were made to target and meet the advice and representation needs of people experiencing barriers to accessing such services. These barriers included, but were not limited to, those caused by language, culture, physical access, significant levels of deprivation and financial exclusion. The service had to be available to all of the diverse communities of Greenwich and had to focus particularly on “those who are socially excluded and vulnerable and who need to understand their rights and who need both the protection of the law and help to move forward”. The groups of people who were likely to fall into these categories included: the unemployed and people on low incomes; people with long-term illness or disability (including mental health); older people (those aged 50 or above); young people (those aged 24 or below); people from BME communities; migrant workers; and those with problems relating to accommodation (including those in temporary accommodation).

Under the interim agreement both parties were to follow the principles of the National and local Greenwich Compacts. These compacts are between on the one hand central and local government and on the other hand charities, social enterprises, voluntary and community groups, and so on. In the National Compact of December 2010, promoted by the Prime Minister and Deputy Prime Minister, one specific undertaking is to give 3 month’s notice when terminating funding, apart from exceptional circumstances, and a clear rationale for the decision. The Greenwich Compact obliges the Council to provide a timetable which is “mutually realistic”.

At its meeting on 12 May 2011, the Council’s Overview and Scrutiny committee considered the report which officers had prepared for the re-commissioning of legal advice services. After setting out the background, the report summarised the principles to underpin the exercise: the mix of advice provided must meet the Council’s needs-based priorities; a range of accessible delivery points and outreach services must be included; the configuration of provision must deliver improved efficiency and value; a single agency should provide general help advice, identifying and referring priority cases on to specialist agencies; and specialist advice should be provided by a lead agency, with a local centre of excellence in each legal advice specialism. Then the report recommended that legal advice services should be commissioned, each through a separate “contract module (or funding agreement) and service specification”. The four modules were general advice, housing, money/debt and other areas such as immigration and employment. The report continued:

“[O]fficers recommend re-commissioning on a modular basis, offering the four service areas … on a single agency basis. This would not rule out a single provider securing all the services modules, though recent experience and knowledge of the advice market suggests this is unlikely. Whilst a consortium approach to delivering all or some of the modules could not be ruled out, again experience indicates that the governance and internal performance management requirements for a successful consortium approach make this unlikely. Officers recommend offering grant arrangements to voluntary sector providers in relation to the first three service areas and opening the “other specialist advice” module out to private sector bidders. Thus this last module would be available on a contractual basis. Sub-contracting by a single agency within a contract module should be allowable but only to secure specific specialist expertise and where efficiency is not undermined.”

At the 12 May meeting of the Overview and Scrutiny committee officers outlined the report. The project director explained that the provisional timetable was that applications were to be received by the end of June, and a decision made in September through a report to cabinet. Contracts were to commence on 1 October 2011 but there would be scope for dialogue with applicants before finalising the arrangements. During the committee’s deliberations Councillors raised the need for drop-in facilities. The project director explained that telephone advice was favoured these days although there was room for discussion with applicants about drop-in.

Following the committee’s endorsement of the report, a tendering document was issued on 21 June 2011. It said that the aim was to commission the services of advice providers who were able to reach out into the community and deliver services to the targeted priority groups. The document contained specifications for accessibility, disability and ethnicity. The grants or contracts awarded would run from October 2011 until 31 March 2013. All successful applicants must be ready to commence delivery of the relevant service on 1 October 2011. The modular approach was outlined. The tender document explained that recommendations would be considered by Council members, with the final funding decision resting with the cabinet. A time line of boxes indicated that the closing date for applications was 5pm on Monday 1 August. However, the highlighted text under the boxes read: “It is essential that all applications/tenders be received before 5pm on Monday 2 August 2011”. In fact the 2 August was a Tuesday. However, the 5pm Monday, 1 August 2011 date was set out under the heading: “The Application Process”. Under that heading applicants were also informed that they must submit hard copies of their application.

At a meeting of the Overview and Scrutiny committee on 21 July, the project director informed members that if awards or contracts for legal advice services were with new providers, there would need to be a longer lead-in period. However, it was anticipated that the interim providers would be willing to offer cover until the new arrangements were in place.

There were no interviews associated with the bidding process. Each application form had a variety of heads, each head attracting a number of points. The tender document itself had explained that although the final score was indicative of the likely best provider, the award would be to the organisation which was successful in demonstrating that it was able to match the Council’s vision and meet people’s needs, even if not the highest scorer. Under the different heads for applicants to complete was “equalities”:

“Please give details of steps taken to ensure that equalities issues are championed especially with regards to enabling full access to the services (demonstrating awareness of diverse needs; evidence of planning services to meet the needs; using resources to support needs).”

There were also specific heads for location of service, service availability and expanding the reach of the service.

Under the “location of services” heading, the Greenwich CLC bid for the immigration and employment grant explained that the majority of the services would be delivered at its main office. It has previously run outreach services to various parts of the borough but the experience was that it was not necessarily the answer to access and could be costly. Outreach, however, was not ruled out. Under the “expanding the reach of the service” head, Greenwich CLC said that some advice services may be run from the Woolwich area if the need arose. By contrast with the Greenwich CLC application, the Plumstead CLC bid set out a clear intention to offer outreach services across the borough, at a youth club and a community centre, as well as mentioning its practice of providing home visits to those who could not physically access its offices in Plumstead High Street. Advice was also available by email, it explained, and the website offered links to other websites with legal information.

On 1 August Greenwich CLC submitted its employment and immigration bid. The housing and welfare bid was submitted the afternoon the following day. There then followed email correspondence in which the Council rejected the latter bid as a day late, and Greenwich CLC explained that it had been misled by the Monday 2 August deadline highlighted in one part of the tender document. The Council insisted that despite the error in the document Greenwich CLC’s mistake was not a reasonable one. In as much as the Council did have a discretion to permit late applications, given the competitive process it was an extremely limited discretion and the Council was not prepared to exercise it in the law centre’s favour.

The Council’s evaluation panel met in August to score the bids. As regards the two bids for immigration and employment, Plumstead CLC scored 92.5 points overall, Greenwich CLC, 66 points. Under the “equalities”, “location” and “expanding the reach of the services” heads, the scores were 3.5 to 2.5, 4 to 2.5 and 8 to 3 in Plumstead CLC’s favour. The text accompanying the scoring referred to Greenwich CLC’s good track record but that the bid document was poorly drafted, with the hallmarks of having been rushed. There appeared to be a significant funding shortfall between the grant and the actual cost of the service, and it was far from clear that this was sustainable from other funding sources. By contrast Plumstead CLC had substantial reserves.

On 31 August officers met with representatives of Greenwich CLC to inform them, in confidence, that given the evaluation the recommendation to go to cabinet was that the immigration and employment grant be awarded to Plumstead CLC. Another email the following day confirmed this, but underlined that the final decision would be taken by cabinet, and even that decision could be reconsidered if it was called-in under the Council’s scrutiny arrangements. If the officers’ recommendation was followed, Greenwich’s rent-free accommodation would need to be considered as well.

Knowing of the recommendation and in anticipation of the cabinet meeting, Greenwich CLC circulated letters to cabinet members dated 13 and 19 September 2011. These explained its established record, its outreach and equalities services at places such as HMP Belmarsh (at the eastern edge of the borough), and its some 100 open immigration cases. The 19 September letter raised, to some extent in inchoate form, the grounds now agitated in this judicial review.

Brought to Cabinet on 20 September 2011 were the results of the evaluation exercise and the officers’ recommendations. The report set out the background, including the government’s announced intention to withdraw legal aid in areas such as housing, debt, employment, immigration and welfare. It asserted that the commissioning of community based legal advice services had sought to secure providers able to reach out into the community and to deliver services to the priority groups. The report also mentioned the principles applied to the commissioning process, indicated earlier. The report said that the grants were to be awarded for the period 1 October 2011 until 31 March 2013, in other words 18 months. Successful applicants would be expected to commence delivery of the relevant service on 1 October although a transitional period would be accommodated if necessary. Officers would work with the successful providers to agree a reasonable time frame.

The report then set out the bids received and outcomes: general help, 1 bid, from the Citizens Advice Bureau; housing and welfare benefits, 1 bid, from Greenwich Housing Rights; debt and money management advice, 2 bids, from the Citizens Advice Bureau and Meridian Money Advice; and employment and immigration, 2 bids, from Plumstead CLC and Greenwich CLC. The report continued that having undertaken a detailed review and evaluation, it was recommended that funding be provided as follows: general help, Citizens Advice Bureau, £577,500; housing and welfare benefits, Greenwich Housing Rights, with sub-contractual arrangements with Plumstead CLC, £304,500; debt and money management advice, Citizens Advice Bureau, with sub-contractual arrangements with Meridian Money Advice, £199500; and employment and immigration, Plumstead CLC, £73,500. The report noted that Greenwich CLC would not receive funding but that officers would be arranging meetings with it to discuss the impact of the change. Members were reminded that in considering the recommendation they needed to be aware of the Council’s equality duties and the impact the recommendations may have on different equality groups.

Cabinet agreed the report’s recommendations. Before the cabinet the project director explained that discussions were to be held with the successful organisations. These would include identifying how residents accessed their services. He told Councillors that the officers were confident that residents would be able to access face to face advice services across the borough. He also explained that two of the bids from Greenwich CLC had been received after the deadline but that was the only organisation which had missed the 1 August date. (The Greenwich CLC bid for money and management advice had arrived blank; not surprisingly no point about its rejection is taken in this judicial review). Members of cabinet asked questions about face to face versus telephone provision. The project director confirmed that that was to be negotiated with the successful bidders over the following weeks, the intention being to increase the accessibility of legal advice services.

Cllrs Spencer Drury and Nigel Fletcher called in cabinet’s decision. Their reasons were that the decision seemed to result in a concentration of face to face and direct public access services in the Woolwich and Plumstead areas, while leaving the west of Greenwich without a suitable provider. They sought to clarify whether the decision-making process fully took into account the geographical spread of advice centres.

Meanwhile there were various communications from the Council offering Greenwich CLC discussions about the future and any support the Council could provide. On 22 September the law centre sent a letter before claim. A letter from the Council the following day offered a further meeting with the law centre, without prejudice to the judicial review, with a view to discussions on arrangements for the handover of open cases and the continuing use of the premises occupied by the law centre.

There was a meeting between representatives from Greenwich CLC and the Council on 7 October 2011. The implications of the call-in were explained, that cabinet would meet again on 18 October. Transitional arrangements were discussed, should cabinet’s original decision be confirmed. The Council was keen for contingency planning and for discussions to occur. In response Greenwich CLC’s representatives said that not all clients would want their case transferred elsewhere, that the law centre was not prepared to abandon its clients half-way through a case, and that it was therefore likely it would continue to support those clients.

A letter from the Council to Greenwich CLC on 12 October explained that it would not reopen the tendering process to permit the law centre’s rejected bids to be re-evaluated. As to transitional arrangements the Council has still to discuss these but had offered various meetings.

In response to the call-in officers prepared a further report for the cabinet meeting to be held on 18 October. That report explained that the commissioning principles had required a range of accessible delivery points and outreach services, and that the evaluation panel directly considered accessibility and geographic spread in appraising and scoring applications. Officers were confident that the successful bidders would continue to deliver an accessible service to residents across the borough and targeted towards priority client groups, in particular the most deprived neighbourhoods.

At the cabinet meeting on 18 October Cllr Drury explained the call-in, that he had received a number of concerns, in particular the lack of legal advice services in the west of the borough should Greenwich CLC close. The future geographic spread of services was also unclear. He wanted assurances about the future of the service and the ability of residents to access legal advice services. The chair of the Greenwich CLC, Mr Mills, also addressed the committee, outlining the long history of the law centre and that it had some 788 open cases. The timescale – the law centre had been informed that the decision would be made in September, with the new funding regime to start in October – did not enable the law centre time to hand over cases or to make its own arrangements. In response, the Council’s project director reviewed the development of the specification and informed cabinet that the new arrangements would ensure a continuation of outreach and drop-in centres. Officers were confident that there would be good coverage across the borough. They were also satisfied about the immigration services to be provided by Plumstead CLC and that appropriately qualified staff were being recruited.

In response to questions from members of the cabinet, the project director confirmed that service level agreements were being drawn up to handover ongoing cases to the successful bidders. However, the Council could not require the transfer of casework if a client wanted to stay with the existing agency. In that regard it was noted that Greenwich CLC received other funding. The chair of cabinet, Cllr Chris Roberts, stated that the new commissioning arrangements reduced spending on administrative and back office costs after a period in which providers had failed to achieve that themselves. It had enabled the cabinet to identify the appropriate future for providers within the funding available. It was inevitable in the commissioning process that some of the providers might not be successful. Cabinet then reaffirmed its previous decision.

Officers reported to the 10 November meeting of the Overview and Scrutiny committee that they were in the process of finalising requirements for outreach and drop-in services at accessible locations around the borough. (In the course of the hearing a map was helpfully produced showing those locations as finally agreed.)

Funding to Greenwich CLC had been extended until 11 November because of the call-in. Plumstead CLC and Greenwich Housing rights took over on 12 November. On 18 November permission for judicial review was granted by Ingrid Simler QC, sitting as a deputy High Court judge. She refused interim relief, including orders preventing the Council from implementing its decision to award funding to other providers and requiring it to provide further funding to Greenwich CLC on an interim basis.

At the outset of the hearing Greenwich CLC withdrew one of its grounds of review. With characteristic frankness Mr Manning conceded that some of the remaining grounds overlapped. It seems convenient to separate out the different heads of challenge, however, although Mr Manning’s concessions mean that the discussion under some of these can be truncated.

Mr Manning’s first submission on behalf of Greenwich CLC was that the timetable for the commissioning of legal advice services was, in the legal sense, irrational. It was entirely open to the Council to organise its timetable in such a way that the existing arrangements could be ended, and the new arrangements introduced, in a manner which did not jeopardise the ability of the clients of existing providers to continue with their ongoing legal disputes. The process should have been designed to permit an orderly transition from the old to the new arrangements. What happened failed to provide sufficient time for any transition in the event that existing funders were not successful.

As far as the specific time periods were concerned, Mr Manning submitted that even taking account of the extension of funding to 11 November, the Council gave a total of just 7 weeks’ notice of the withdrawal of funding, from 20 September (the date of the cabinet decision) to 11 November. In reality, only 3½ weeks’ notice was given, from 18 October when the cabinet affirmed its previous decision, to 11 November. It could not have been the Council’s intention at any time prior to the cabinet decision of 20 September 2011 that the law centre should stop providing the services for which it was being funded, or that it should start winding itself up, making staff redundant, just in case it was unsuccessful in securing further funding via the commissioning process. For the law centre to have adopted such an approach would have left it unable to bid because the bid required it to explain how it could provide the contracted service and would have undermined the credibility of its bid.

In particular, submitted Mr Manning, the timetable failed to comply with the National and Greenwich Compact on withdrawing funding from third sector organisations. The National Compact requires, in the absence of exceptional circumstances, 3 months notice as the minimum. There were no remotely exceptional circumstances here. The provisions of the compacts were the subject of negotiation between the government as funder and funded bodies as to what it was reasonable for all parties to expect.

In my view the outcome of this challenge turns very much on the background facts. A basal contention is that the Council’s budget came under severe pressure as a result of central government’s decision on public expenditure. That led to Cllr Brooks’ letter of 3 December 2010, cautioning the organisations funded by the Council that they should, to put it generally, prepare for the worst, including issuing precautionary redundancy notices to staff. Although Greenwich CLC’s funding was to finish on 31 March 2011, it was extended for a further six months until 30 September 2011 while the Council pursued re-commissioning. Under the interim funding agreement Greenwich CLC was required to have in place robust plans for any transition to new service providers after 30 September.

The Council then decided on the modular approach, which it conceived of as more efficient. By 2 August it was aware that the Council regarded the housing and welfare benefits bid as disqualified for lateness. By 30 August it knew that the officers had not evaluated its immigration and employment bid favourably. After cabinet’s decision on 20 September the writing was on the wall. Greenwich CLC’s poor evaluation meant that the call-in was unlikely to affect the outcome. Thus there was the period of some 8 weeks between cabinet’s approval of the decision not to contract further with Greenwich CLC on 20 September and the end of funding on 11 November.

To my mind this background leads inevitably to the conclusion that, as a matter of law, Greenwich CLC gets nowhere near surmounting the high threshold of an irrationality challenge. First, Greenwich CLC had been aware for months of the Council’s budgetary position and its implications, of the Council’s desire to change the mode of delivery for the legal advice services it funded in the borough, and that its existing grant (including the interim grant) would come to an end. Secondly, it undertook the obligation in the interim funding agreement to have in place robust plans for transition to new service providers after 30 September. Thirdly, the Council made various offers after Greenwich CLC was informed of the outcome of the evaluation on 31 August to assist the transition process of existing clients. Those offers came to nothing. As was evident in the minutes of the 7 October meeting, Greenwich intended to continue with its existing clients, as far as possible. It is to its credit that it appears to be doing that.

Nothing in the National or Greenwich Compacts compels a different conclusion. The National Compact refers to a 3 month period of notice when changing or ending a funding relationship, not to a 3 month transition period. Greenwich’s Compact does not contain a specific period. In the present case, Greenwich CLC had more than six months’ notice that its existing funding relationship with the Council would end on 30 September 2011. In the event it received funding for a further six weeks after that. As I have explained there was in the end a period of almost two months between the writing being on the wall following cabinet’s decision on 20 September and the end of funding on 11 November.

This ground of challenge was very much the first ground of challenge kitted out differently. As a matter of law it is said that the Council failed to take into account a relevant consideration, in that it omitted to conduct a risk assessment regarding the transfer of provision from Greenwich CLC to other providers. That assessment should have covered the risks of suddenly withdrawing all funding from Greenwich CLC in terms of the impact on its ability to continue and its existing clients with their ongoing litigation, especially given the new providers’ lack of capacity to provide services to a similar level. Depriving clients of their preferred or, in the short to medium term any, adviser or representative as a result of the Council’s decision would almost certainly cause prejudice to the outcome of at least some of the outstanding disputes.

In as much as Mr Manning’s submissions at some points drifted away to attacking the process for awarding grants for legal advice services, they can have no purchase given the timing and formulation of the grounds of this judicial review. Although the tender document made clear that the grants would not necessarily be awarded to the agency with the highest score, the fact is that Greenwich CLC bids were scored as comparatively weak. In as much as Mr Manning’s submissions were meant to demonstrate that the Council should have awarded funding to Greenwich CLC, rather than to other providers, the answer is that the Council was not entitled to take account of, and weigh in its favour, the difficulties which the clients might face if its funding were to cease. That approach would depart from the selection criteria on which bids were invited, formulated and decided. The plain fact is that the tender document was not challenged at the time. It is also the unfortunate reality of the funding process that grants may be terminated and the providers of services, and those benefiting from them, left in the lurch.

In any event, the difficulties for clients on the termination of funds to Greenwich CLC were before cabinet on 20 September. Greenwich CLC’s 13 September letter had made the point about the number of active matters it was handling. It was a factor to be taken into account but clearly not strong enough to counter the results of the evaluation. As explained earlier, the Council offered assistance for the transitional period. At the 7 October meeting Greenwich CLC made abundantly clear that it would attempt to continue with its existing clients. There was no evidence before me that Greenwich CLC’s clients have been disadvantaged or could not transfer to the new providers, Plumstead CLC and Greenwich Housing Rights.

For Greenwich CLC Mr Manning submitted that the Council was in breach of its equality duty to pay due regard under section 149 of the Equality Act 2010. The Council’s Equality Policy states that equality impact assessments will be undertaken for new policies, or policies for which significant changes are proposed. The Overview and Scrutiny committee’s report to cabinet in March 2011 recommended that an assessment should consider the impact of the cessation of funding on smaller, locally based organisations. The March 2011 assessment was the only one undertaken. That was in relation to the outcome of the previous commissioning process and the general decision to award interim funding and undertake a new process. The modular approach had not yet been decided. After the modular approach emerged, and was incorporated as part of the tender exercise, the Council did nothing that came anywhere close to demonstrating that due regard had been had to the public sector equality duty. While an equality impact assessment is not always necessary to demonstrate due regard, there is no evidence that the Council gave the equality duty anything other than the most fleeting consideration.

Mr Manning submitted that the invitation to cabinet to perform the equality duty at its September and October meetings was irrelevant. It was in no position to do so, having received no report, no assessment, and no other information about the impact of the proposed decision on equality issues. The statutory duty is to be exercised in the performance of the Council’s functions and there can be no dispute that the award of funding by cabinet was a function. Mr Manning used the issue of accessibility as an illustration. The Council said that appropriate provision had been made for outreach services. Yet the availability of outreach facilities, appropriate to discharge the public sector equality duty, was not a given at the time of cabinet’s decisions. Moreover, it has never been assessed for compliance with the equalities duty. Even after the new arrangements were supposed to have been in place, it was still considering how the outreach arrangements were going to work. Geographical accessibility was merely one issue which demonstrated that the Council simply failed in its equality duty.

Under section 149(1) of the Equality Act 2010 the Council must, in the exercise of its functions, have due regard to the need to eliminate unlawful discrimination, harassment and victimisation. It must also advance equality of opportunity and foster good relations between persons with protected characteristics and others. Having due regard to the need to advance equality of opportunity involves having due regard, in particular, to the need to remove or minimise disadvantages suffered by persons who share a relevant protected characteristic; taking steps to meet the needs of persons who share a relevant protected characteristic that are different from the needs of persons who do not share it; and encouraging persons who share a relevant protected characteristic to participate in public life or in any other activity in which participation by such persons is disproportionately low: s.149(3). Section 149(4) provides that the steps involved in meeting the needs of disabled persons that are different from the needs of persons who are not disabled include, in particular, steps to take account of disabled persons’ disabilities. Having due regard to the need to foster good relations involves having due regard, in particular, to the need to tackle prejudice and promote understanding: s.149(5). The “protected characteristics” for the purposes of the equality duty are defined by s.149(7) as: (i) age, (ii) disability, (iii) gender reassignment, (iv) pregnancy and maternity, (v) race, (vi) religion or belief, (vii) sex, and (viii) sexual orientation: see also ss.5-7, 9-12. Compliance with section 149 duties may involve treating some persons more favourably than others: s.149(6).

Due regard is the regard that is appropriate in all the circumstances: R (Baker)vSecretary of State for Communities and Local Government[2008] EWCA Civ 141; [2009] PTSR 809, [31]. In that case Dyson LJ said: “The question is whether the decision-maker has in substance had due regard to the relevant statutory need. It is necessary to turn to the substance of the decision and its reasoning”: [37]. Paying due regard is an essential preliminary to any decision: R (BAPIO)vSecretary of State for the Home Department[2007] EWCA Civ 1139, [3]. While the circumstances may point strongly in favour of undertaking a formal equality impact assessment, that is not a statutory requirement: R (Brown)vWork and Pensions Secretary[2008] EWHC 3158 (Admin); [2009] PTSR 1506, [89]. In that case the Divisional Court identified a number of helpful principles that demonstrate how a public authority should fulfil its due regard duty: [90]-[96]. These included that the due regard duty must be fulfilled before and at the time that a particular policy which might affect relevant persons is being considered; the duty has to be integrated within the discharge of the public functions of the authority; and the duty is a continuing one. Clearly the duty applies not only to the formulation of policies, but also to the application of those policies in individual cases: Pieretti v Enfield LBC [2010] EWCA Civ 1104; [2011] HLR 3.

Stepping back from the details, it seems to me that what the Council was attempting to do was to mitigate inequalities in what it thought was the most effective way, against a background of a significant reduction in government expenditure. The Council conducted an equalities impact assessment in March 2011 in advance of its decision not to award funding for legal advice services and instead to conduct a fresh commissioning round. The whole purpose of its funding legal advice services was to assist priority groups. That theme runs through the whole of the commissioning exercise, in particular under the heads mentioned earlier in the judgment, “equalities”, “location of services”, and “expanding the reach of the services”. It then selected those organisations which in terms of the criteria would best achieve the objectives.

As a matter of law there is no obligation to conduct a formal equality impact assessment before every decision. Here the Council conducted an equality impact assessment in March 2011 in advance of its decision not to award funding for legal advice services and instead to conduct a fresh commissioning round. It paid due regard in substance to its equalities duties under the Equality Act 2010 by remaining faithful to the focus on priority groups in the tendering exercise. In my view there was no need for a further equality impact assessment with regard to the outcome since the logic of the tender process meant that performance of the duty was integral to the outcome. Selection of the winning tenders would inevitably pay due regard to the equalities objectives. No new or different equalities considerations arose.

Mr Manning’s submissions on accessibility were based on several faulty premises. Notwithstanding the assertion, later abandoned, Greenwich CLC is not at the centre of the borough. (When Cllr. Drury called in cabinet’s September decision it was because not funding Greenwich CLC might deprive the western part of the borough of legal advice and assistance). More importantly, accessibility was in fact considered by the Council during the tender process. As we saw that was an issue on which Greenwich CLC scored badly in the tender evaluation. Whatever the effectiveness or otherwise of outreach services, that was identified by Councillors, amongst others, as necessary to take the services to the priority groups. Greenwich CLC proposed inadequate outreach services. By contrast the successful tenderers had thought through outreach proposals, including in children’s and community centres, albeit that they were not finalised until later. Mr Manning’s submissions in this regard were self-defeating.

With this ground of challenge Mr Manning made clear that he was not suggesting that Greenwich CLC’s rights had themselves been breached. Rather the Council has failed to consider the Article 6 rights of its clients when making the decisions under challenge. Those decisions would have effects on the ability of those clients to have a fair hearing. In effect this was a challenge to the failure to have regard to relevant considerations, i.e. the failure to assess any of the consequences of the decisions made. For the reasons I have already given this challenge cannot succeed.

The last two grounds of challenge focused on what are said to be particular defects in the award decision on the bids. First it was said that the decision on the immigration and employment grant was flawed. The reason initially given for preferring Plumstead CLC’s bid was a generalised assertion that Greenwich CLC’s bid was substantially weaker. It later transpired that the evaluation panel did not have the final version of Greenwich’s bid. The bid which was evaluated was an earlier version and not the final version, submitted by email on 1 August 2011. In any event, the evaluation was flawed because it was irrational or manifestly wrong to mark down Greenwich CLC’s bid on outreach. Its location in Greenwich makes the question of outreach of considerably less importance. It did not fail to offer any outreach provision. It suggested that advice services would be run from the Woolwich area if the need was identified and that outreach would be put in place if new issues arose. It also offered to provide outreach and home visiting services where appropriate. Moreover, Plumstead CLC’s successful bid was materially misleading since it incorrectly stated that it was the only organisation in the borough providing representation in both the Employment Tribunal and the Employment Appeal Tribunal. Greenwich CLC had a track record before both bodies.

In my judgment neither of these points goes anywhere. In evidence I accept the Council contacted Greenwich CLC shortly prior to the 5pm deadline on 1 August, inquiring about their employment and immigration bid. A worker at Greenwich CLC emailed two copies of the bid, at 16.56 and 16.59 respectively. A further email was received from the director himself, with a copy of the bid. There was no indication that there were any differences and which was the final version. For perfectly understandable reasons what Greenwich CLC regarded as the final version was not the one sent to the evaluation panel. The problem would never have arisen without the last minute submissions and if Greenwich CLC had followed the instruction in the tender documentation, to send a hard copy of any application, as well as an email version.

In fact the evidence is that the final version had filled in only a few spaces left blank in the earlier versions. As outlined earlier, the discrepancy between the marks awarded to the respective bids of Greenwich CLC and Plumstead CLC was considerable. It is not for me to engage in a scoring exercise. Three points, however, can be made. First, the evidence rings true that the completion of a few blanks in the final version of Greenwich CLC’s bid would not have affected the outcome. Secondly, the Council had perfectly rational reasons for preferring the tender of Plumstead CLC over that of Greenwich CLC. Thirdly, the criticisms made about access, even if true, could not have accounted for the wide gap in the marks awarded to the respective bids. Plumstead CLC may have been wrong in its assertion about employment tribunal work, but Greenwich CLC set out its role in that regards in its application form. There was no irrationality or manifest error in the Council’s decision in this regard.

It will be recalled that the Council rejected Greenwich CLC’s bid for housing and welfare rights as a day late. Mr Manning submits that the Council failed to consider the appropriate legal principles when assessing whether it had power to extend time. The fact is that the Council published misleading information and Greenwich CLC acted on that information. Albeit that Greenwich CLC was partly responsible for the error causing the late submission of the bid, in Mr Manning’s submission that was not the issue. The Council contributed to the error by misleading Greenwich CLC as to the closing date for submissions. Having rejected Greenwich CLC’s bid on the grounds of lateness, the Council nonetheless permitted Greenwich CAB and Meridian Money Advice, who had submitted separate bids for the debt and money management module, to amalgamate their bids after the submission deadline to produce a different, single bid with sub-contractual arrangements. Accepting the late bid for the housing and welfare benefits module would not have caused any prejudice to other bidders, or none that could not have been cured by offering the other bidders an additional 24 hours in which to make any submissions that they would have made if they had had longer to do so. In fact, there was only one other bid for the housing and welfare benefits module, which was therefore approved without any competition.

The legal principles to which Mr Manning referred are contained in two authorities, Leadbitter v Devon County Council [2009] EWHC 930 and Azam v Legal Services Commission [2010] EWCA Civ 1194. Leadbitter concerned an EU procurement exercise. The Council refused to consider a tender from a contractor on the basis that it was incomplete. The contractor had forgotten to submit part of its tender within the deadline. It remedied the error by supplying the missing information in an impermissible manner and after the submission deadline had expired. The contractor’s challenge to the Council’s refusal to consider the tender failed. David Richards J held, however, that the principles of proportionality applied:

“There may be circumstances where proportionality will, exceptionally, require the acceptance of the late submission of the whole or significant portions of a tender, most obviously where, as noted by Professor Arrowsmith, it results from fault on the part of the procuring authority. But in general, even if there is discretion to accept late submissions, there is no requirement to do so, particularly where, as here, it results from a fault on the part of the tenderer. In addition to the considerations already mentioned, the particular facts on which the claimant relies to characterise its case as exceptional would require investigation and determination by Devon CC and I do not see that it was required to undertake those tasks. In my judgment, the decision of Devon CC to reject the claimant's tender was well within the margin of discretion given to contracting authorities”: [68].

In Azam the claimant had missed the deadline for submitting its tender by 7 days. It contended that it had done so because the LSC had failed to inform it of the deadline, and that the Commission’s refusal to extend the deadline was disproportionate. The Court of Appeal rejected the challenge. Rimer LJ commented:

“Had Azam been able to demonstrate that its timing problems had been caused or contributed to by the Commission, that would have been a compelling factor to bring into consideration when considering whether or not it was disproportionate for the Commission not to accept Azam's late bid”: [48].

Rimer LJ approved the passage from Leadbitter justquoted: [53].

Neither of these authorities points inevitably to Greenwich CLC succeeding with this ground of challenge. Fault on part of the Council, or whether it caused or contributed to the lateness, is only one part of the equation. The legal test is irrationality or, if the Public Contract Regulations 2006, 2006 SI No 5, apply, manifest error. (It is unnecessary for me to decide whether the Regulations do apply). There was the typographical error in the tender document on which Greenwich CLC relies. However, I cannot conclude that the Council behaved irrationally, or was in manifest error, in concluding that the tender documentation as a whole made clear that the deadline was Monday 1 August, and that, accordingly, the real fault for missing the deadline lay with the law centre. As I have described, the page of the tender document which gave the date as Monday 2 August also stated the correct date, Monday 1 August. The part which set out important instructions about the application process, stated the deadline as 1 August. In any event, the law centre never submitted a hard copy of the application, as the tender document required. All other bidders met the deadline for each of their bids. That bears on the Council’s view that the typographical error did not justify the late submission of the bid and did not outweigh its obligation of equal treatment in respect of those tenderers who did manage to submit their tenders on time. In my judgment that view cannot be said to be manifestly wrong or irrational.

Since I have reached that conclusion as a matter of principle, there is no need to address the process by which Greenwich CAB and Meridian Money Advice entered a sub-contracting arrangement. But I accept the Council’s evidence that no one was permitted to alter their bids post-submission. As well I do not need to evaluate the Council’s submission that the typographical error should have given rise to a query, which Greenwich CLC should have taken up well in advance of the deadline, and that it failed to do so because of chaotic organisation and last-minute action on its part. Nor need I enter the territory of whether, as the Council submitted, the law centre’s tender for housing and welfare rights suffered from serious defects and would not have scored more highly than the successful tender of Greenwich Housing Rights.

It is with considerable regret that I reach the conclusions I do. Greenwich CLC is a long established law centre. Its work is well known to this court. In 2009 it was assessed by the Council as costing the least per case of all the advice providers in the borough. If the law centre does close it will be a sad day, to say the least, for the staff and its clients. Despite the Council’s assumptions it may be that outreach is not the best way of reaching the priority groups. It also may be that the type of scoring exercise rampant in decision-making these days measures more the ability to write an application than the quality of the applicant. None of these issues are for me. As a matter of legal analysis I can detect no reviewable flaw in how the Council has behaved in this case. Notwithstanding Mr Manning’s considerable advocacy, and the invaluable assistance Mr Brown provided him before and during the hearing, there is nothing in what they raised before me to cast any shadow of doubt on the lawfulness of the Council’s actions throughout the grant awarding process.