Access for Living v London Borough of Lewisham

Hearing dates: 16 July 2021

Approved Judgment

I direct that pursuant to CPR PD 39A para 6.1 no official shorthand note shall be taken of this Judgment and that copies of this version as handed down may be treated as authentic.

Background

This matter involves two applications. The defendant council (“the Council”) seeks to strike out the claim on the basis that it is time barred and in the alternative seeks summary judgment. The claimant makes a corresponding application, so far as necessary, for an extension of time to issue proceedings. The claimant accepts that the claim is out of time so far as paragraphs 15(6) and 15(8) of the Particulars of Claim are concerned but the claimant's primary position is that no extension of time is necessary in respect of the claim advanced in paragraph 15(7).

The claimant is a charity. Mr Harris, its CEO, sets out the background to its existence in his witness statement. In its current form, Access for Living provides services to people with varying degrees of learning disabilities. It does so on behalf of the Council which is its only client. It has been supporting some individuals for decades let alone years and it is quite clear that Mr Harris feels strongly about the importance of continuity for clients.

In September 2019, the Council put into place a Framework Agreement covering adult learning disability services and the claimant was one of 21 providers appointed to the “supported living” Lot 1.

On 21 October 2019, the Council commenced a mini-competition for the award of 4 year contracts for the provision of 12 adult learning supported living services. The claimant was the existing provider for 5 of these services. The contracts were due to come to an end on dates in March and April 2020.

The competition was conducted through a portal and the Invitation to Tender was published through the portal on 21 October 2019. The claimant tendered for the 5 lots where it was the existing provider but was unsuccessful in all bids.

In very short summary, the tenderers were required to complete a series of Method Statements which would form the basis for evaluation. MS5 was headed Support Hours and was in the following terms:

“MS5 Support Hours

Please clearly describe how you would evidence how the individually allocated support hours (either as 1: 1 or 2:1) are being used? How would you monitor delivery to identify where hours could be reduced? (maximum 500 words)”

Tenderers were required to achieve a score of at least 7 against MS5. The claimant's score was 6 and so the claimant's bid did not progress past this stage of evaluation.

The claimant's response to MS5 included the following:

(i) “Access for Living (AfL) is given CAAs by the social work team. These identifies (sic) key areas where 1: 1 or 2:1 support is required, which could include personal care, activities, maintaining health, skills teaching etc. The manager of the service ensures that the hours identified are allocated.”

(ii) The claimant then set out “The evidence that shows the allocation of hours”. The following paragraphs made reference to Rotas, which record service users' activities and who is allocated to support them, and to Weekly Plans showing weekly activities for each service user both inside and outside the house.

(iii) The next section said that the manager of the service monitors 1:1 hours and outcomes using various tools. The tools were set out with a fuller explanation of what they encompassed: service user's diaries/ house diary; monitoring forms; PCP meetings/keyworker meetings; team meetings, supervisions and observations.

(iv) The final section or paragraphs (which appeared to address the second question) said:

“Whilst hours are allocated weekly, not all of the areas that people need support with are weekly and there needs to be some flexibility in the allocation of hours. For example, support with medical appointments, this would not be a weekly need, but the hours identified may be used in a block. This could be the same for family contact, visits. etc.

When there is an identified reduction in a person's 1:1 support, AfL will alert the Social Work Team, so support time can be reduced, reviewed, or reallocated.

AfL is committed to supporting service users to become as independent as possible in all aspects of their daily lives, and by going so, this will lead to less reliance on 1: 1 or 2:1 support. To date, AfL has successfully supported 9 people from living in 24 hour supported houses to live independently in their own homes with outreach support.”

The claimant was informed, on 7 February 2020, that it had been unsuccessful. Against MS5, the reasons given for the lower score were:

(i) The response “conveys a view of service users as passive recipients of support and does not evidence their involvement in planning their own support.”

(ii) “The response also does not address the process for how reduction in support will be managed and monitored.”

Proceedings against the Council were issued on 11 March 2020. In the Particulars of Claim, the claimant relies on Part 2, Chapter 3, Section 7 of the Public Contracts Regs 2015 and the defendant's obligation to use procedures that were sufficient to ensure compliance with the principles of transparency and equal treatment of economic operators (Regulation 76(2)). It is not in issue that that was the relevant regime.

The claimant then makes the following complaints:

“15.6 In breach of the transparency principle the Defendant did not evaluate the Claimant's tenders in accordance with the published criteria: reason (a) relies on the absence of an indication that the Claimant would involve service users in the planning of their support and reason (b) relies on the absence of an identified process by which the Claimant would implement a reduction in support hours. The information identified as being absent in the Claimant's response was not requested by MS5.

15.7 Alternatively, MS5 breached the transparency principle because it was not capable of being understood in the same way by all reasonably informed tenderers acting with due care and diligence.

15.8 The Defendant did not treat all tenderers equally because it did not apply a consistent approach to MS5. This is demonstrated by its reasons for selecting the successful tenderer in each of the five mini-competitions…”

The limitation issue

Regulation 92 provides:

92.—(1) This regulation limits the time within which proceedings may be started where the proceedings do not seek a declaration of ineffectiveness.

(2) Subject to paragraphs (3) to (5), such proceedings must be started within 30 days beginning with the date when the economic operator first knew or ought to have known that grounds for starting the proceedings had arisen.

…

(4) Subject to paragraph (5), the Court may extend the time limits imposed by this regulation (but not any of the limits imposed by regulation 93) where the Court considers that there is a good reason for doing so.

(5) The Court must not exercise its power under paragraph (4) so as to permit proceedings to be started more than 3 months after the date when the economic operator first knew or ought to have known that grounds for starting the proceedings had arisen.

(Emphasis added)

The defendant's position is that, so far as the allegation at paragraph 15(7) of the Particulars of Claim is concerned, this is an allegation that the ITT was unlawfully vague. Since the complaint relates to the wording of the ITT, the time for issuing of proceedings started to run at the date of the ITT. The claim is, therefore, not only out of time but the court has no power to extend time because more than 3 months has passed. The claimant disputes this and, indeed, argues that time did not start to run until 3 March 2020 when the defendant replied to a pre-action letter.

So far as the allegations at paragraphs 15(6) and 15(8) are concerned, it is common ground that the time limit for issue of proceedings was 9 March 2020 which I understand to turn on the timing of the upload to the portal on a non-working day.

Events leading up to the issue of proceedings

Before I turn to the arguments, I turn to the events and correspondence that preceded the issue of proceedings.

Firstly, there was, in accordance with Regulation 86, an automatic standstill period from 10 days from 7 February (or 9 February) during which the Council could not enter into new contracts. As Mr Paines rightly points out that is unconnected with the limitation period in Regulation 92. During the standstill period, the Council could not award a new contract. Thereafter, if proceedings were issued in time and before a new contract was entered into there would be an automatic suspension of contract award (Regulation 95) and the remedies in Regulation 97 would be available to the claimant.

In her statement, Miss Spowart, the claimant's solicitor, explains that she agreed to act for the claimant pro bono and obtained advice from counsel, at a significant discount, on 12 February 2020.

The claimant's solicitors then wrote to the Council on 14...