IS (BY THE OFFICIAL SOLICITOR AS LITIGATION FRIEND)
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THE DIRECTOR OF LEGAL AID CASEWORK
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THE LORD CHANCELLOR
1ST Defendant 2ND Defendant
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Mr Richard Hermer, QC and Mr Chris Buttler(instructed by the Public Law Project) for the Claimant
Mr Martin Chamberlain, QC, Ms Cathryn McGahey and Mr Malcolm Birdling (instructed by the Central Legal Team of the Legal Aid Agency for the 1st Defendant and by the Treasury Solicitor for the 2nd Defendant)
Hearing dates: 10th – 12th June 2015
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tMr Justice Collins:
This claim was lodged on 10 December 2013. It was limited to an assertion that there had been an unlawful failure by the first defendant to provide the claimant with funding to enable him to apply to the Home Office to recognise his position in this country. However, on 14 January 2014 the claim was amended to include a contention that there was a systematic failure to comply with the requirements of the Legal Aid Sentencing and Punishment of Offenders Act 2012 (LASPO) in that the guidance issued by the second defendant indicating how an application for Exceptional Case Funding (ECF) under s.10(3) of LASPO should be considered was too restrictive and did not comply with the requirements of Articles 6 or 8 of the ECHR.
There were five other claims which raised similar issues in relation to the guidance and in which the individual claimants asserted that there had been a wrongful refusal of ECF. It was ordered that the six claims should be heard together to deal with the individual circumstances of each claimant and the attack on the guidance. The claims came before me and on 13 June 2014 I granted judicial review in each of the six cases. My decision was appealed to the Court of Appeal by the defendants, but in this case the appeal was discontinued. The cases are reported under the title of R (Gudanaviciene) v. DLAC and Lord Chancellor. The decision of the Court of Appeal is reported at  1 WLR 2247. I shall refer to it in this judgment as R(G).
The claim as amended raised three grounds. The first alleged that the operation of the ECF scheme frustrated the purpose of LASPO in putting obstacles in the path of applicants which were not required and which bore particularly severely on disabled persons such as the claimant. There was thus an unacceptable risk of a breach of Articles 6 and 8 of the ECHR. The second alleged a failure to comply with Section 149 of the Equality Act 2010. The third alleged that the refusal of funding to the claimant breached his ECHR rights under Article 8 and 14 in that without legal aid the claimant was unable to make an effective application to recognise his position.
It was directed that the claim to be decided by me in this case should be limited to the third ground. Other cases attacked the guidance and so I had to decide the issues relating to the lawfulness of some elements of the guidance in the respects alleged and the individual circumstances of each of the six claimants. I decided and the Court of Appeal agreed that the guidance was unlawful in that it wrongly indicated that Article 8 considerations did not apply in immigration cases so that a refusal of legal aid would not breach Article 8 rights. It further was wrong to indicate that the discretion to grant ECF was severely circumscribed and that a refusal would only amount to a breach of ECHR rights in rare and extreme cases.
Although the claimant has no further direct reason to pursue this claim, the Official Solicitor is concerned that the scheme fails properly to deal with claims made by those who lack capacity, whether as children or as adults. This is particularly the case where the Official Solicitor has to act as litigation friend because no other person is available. That was the position in this claim. The importance of the issues raised in this claim has justified its continuation in what in effect amounts to a test case. The defendants have not sought to argue that the claimant does not now have an interest in pursuing the claim since he has obtained the grant of legal aid to enable him to make an effective application. There is clear authority that the court can continue to entertain claims which, albeit they have become academic for the individual claimant, raise important issues which need to be determined in the public interest. That applies to this claim.
The claimant is a Nigerian national who has lived in this country for over 13 years. He is blind, has profound cognitive impairment and is unable to care for himself and so he lacked capacity to engage in litigation. His application for legal aid was refused on the ground that Article 8 of the ECHR was not engaged in immigration cases. That was, as I and the Court of Appeal decided, a mistaken view contained in the guidance. There would be something seriously wrong with a system applied under s10(3) of LASPO when an extremely vulnerable individual who could not afford to pay for assistance and who could not achieve an effective exercise of his Article 8 rights was deprived of such assistance. As the Court of Appeal said in paragraph 80:-
“The case of IS is extreme. It is impossible to see how a man suffering from his disabilities could have had any meaningful involvement in the decision making process without the benefit of legal representation.”
Part 1 of LASPO deals with legal aid. Section 1(1) provides:-
“The Lord Chancellor must secure that legal aid is made available in accordance with this part”.
Legal aid includes provision for ‘advice, assistance and representation’: S.(1)(2)(b). Section 9 provides:-
“(1) Civil legal services are to be available to an individual under this Part if –
(a) they are civil legal services described in Part 1 of Schedule 1, and
(b) the Director has determined that the individual qualifies for the services in accordance with this Part (and has not withdrawn the determination)”.
The Director is the director of the Legal Aid Agency (LAA), the first defendant. Section 9(2) contains a provision which enables the Lord Chancellor to add services to or vary them or remove them from Part 1 of Schedule 1. I do not need to go through the provisions of Part 1 of Schedule 1. Suffice it to say that it takes out of the scope of legal aid available under s9 a large number of cases which would have qualified for legal aid before LASPO came into force. But Section 10 provided what the ministers described to Parliament to be a safety net. It is central to this case. It provides, so far as material:-
“(1) Civil legal services other than services described in Part 1 of Schedule 1 are to be available to an individual under this part if subsection (2)…..is satisfied.
(2) This subsection is satisfied when the Director -
(a) has made an exceptional case determination in relation to the individual and the services, and
(b) has determined that the individual qualifies for the services in accordance with this Part (and has not withdrawn either determination).
(3) For the purposes of subsection (2), an exceptional case determination is a determination –
(a) that it is necessary to make the services available to the individual under this Part because failure to do so would be a breach of –
(i) the individual’s Convention rights (within the meaning of the Human Rights Act 1998), or
(ii) any rights of the individual to the provision of legal services that are enforceable EU rights, or
(b) that it is appropriate to do so, in particular circumstances of the case, having regard to any risk that failure to do so would be such a breach”.
The rest of Section 10 deals with the provision of legal services for inquests which is not material for the purposes of this case.
Section 11(1) of LASPO requires the first defendant to determine whether an individual qualifies for legal aid in accordance with his or her financial recourses. That determination is covered by s.21 of the Act and regulations made under that section. In addition, s.11(1)(b) requires the first defendant to apply ‘criteria set out in regulations made under this paragraph’. Section 11 sets out matters that the Lord Chancellor must take into account in setting the criteria. It provides by subsections (2) to (6) as follows:-
“(2) In setting the criteria, the Lord Chancellor—
(a) must consider the circumstances in which it is appropriate to make civil legal services available under this Part, and
(b) must, in particular, consider the extent to which the criteria ought to reflect the factors in subsection (3).
(3) Those factors are—
(a) the likely cost of providing the services and the benefit which may be obtained by the services being provided,
(b) the availability of resources to provide the services,
(c) the appropriateness of applying those resources to provide the services, having regard to present and likely future demands for the provision of civil legal services under this Part,
(d) the importance for the individual of the matters in relation to which the services would be provided,
(e) the nature and seriousness of the act, omission, circumstances or other matter in relation to which the services are sought,
(f) the availability to the individual of services provided other than under this Part and the likelihood of the individual being able to make use of such services,
(g) if the services are sought by the individual in relation to a dispute, the individual’s prospects of success in the dispute,
(h) the conduct of the individual in connection with services made available under this Part or an application for such services,
(i) the conduct of the individual in connection with any legal proceedings or other proceedings for resolving disputes about legal rights or duties, and
(j) the public interest.
(4) In setting the criteria, the Lord Chancellor must seek to secure that, in cases in which more than one form of civil legal service could be provided for an individual, the individual qualifies under this Part for the form of service which in all the circumstances is the most appropriate having regard to the criteria.
(5) The criteria must reflect the principle that, in many disputes, mediation and other forms of dispute resolution are more appropriate than legal proceedings.
(6) Regulations under subsection (1)(b) may provide that no criteria apply in relation to a prescribed description of individual or services.”
It is apparent from paragraphs (b) and (c) of subsection (3) that the Lord Chancellor is entitled to consider the existence of present and future recourses in setting the criteria. But it has not been suggested by Mr Chamberlain that this means that if the refusal of legal aid would result in a breach of relevant rights, availability of present or future resources can justify refusal.
The Civil Legal Aid (Financial Resources and Payment for Services) Regulations 2013 (2013 no 480) deal with financial eligibility for legal aid. In the course of argument Mr Hermer criticised certain provisions in these regulations and the way in which they have been applied. However, he has not pleaded any such matter and I do not propose in the circumstances to consider that aspect. This is not to say that it is to be assumed that there is no possible challenge to the way in which financial eligibility is considered.
The Civil Legal Aid (Merits Criteria) Regulations 2013 (2013 no 104) as amended deal with the criteria to be applied pursuant to s.11(1)(b) of the Act. The main attack on these regulations relate to the prospects of success. They also contain what is described as the reasonable paying individual test (Reg:7). In addition, consideration must be given to the public interest of a particular case, that is to say its value as a decision which has a wide effect (Reg:6) and whether the likely benefits to the individual and others justify the likely costs (Reg:7).
Regulation 4 requires the first defendant to assess in accordance with the prospects of success test set out in regulation 5 the likelihood that an individual will obtain a successful outcome at a trial or other final hearing. Regulation 5 I should set out in full. It provides:-
“(1) Where the Director assesses, for the purposes of these Regulations, the prospects of success of a matter to which an application for civil legal services relates, the Director must classify the prospects of that matter as follows—
(a) “very good”, which means an 80% or more chance of obtaining a successful outcome;
(b) “good”, which means a 60% or more chance, but less than an 80% chance, of obtaining a successful outcome;
(c) “moderate”, which means a 50% or more chance, but less than a 60% chance, of obtaining a successful outcome;
(d) “borderline”, which means that the case is not “unclear” but that it is not possible, by reason of disputed law, fact or expert evidence, to—
(i) decide that the chance of obtaining a successful outcome is 50% or more; or
(ii) classify the prospects as poor;
(e) “poor”, which means the individual is unlikely to obtain a successful outcome; or
(f) “unclear”, which has the meaning given in paragraph (2).
(2) “Unclear” means the Director cannot put the case into any of the categories in paragraph (1)(a) to (e) because, in all the circumstances of the case, there are identifiable investigations which could be carried out, after which it should be possible for the Director to make a reliable estimate of the prospects of success.”
Regulation 12 specifies the form of legal services which may be provided. These are by regulation 12(3):-
(a) legal help;
(b) help at court;
(c) family help;
(d) family mediation;
(e) help with family mediation;
(f) legal representation; and
(g) other legal services.
Those are further defined in regulations 13 to 19.
Legal Help is defined in regulation 13. The definition is in negative terms in the sense that regulation 13 lists legal services which are not covered by Legal Help. In essence, those not covered constitute any services involving the issuing of any proceedings or preparing for advocacy or instructing any advocate in any proceedings or conducting any proceedings.
Legal representation is dealt with in regulation 18. This provides:-
“(1) Legal representation may be provided as either investigative representation or full representation.
(2) “Legal representation” means the provision of civil legal services, other than acting as a mediator or arbitrator, to an individual or legal person in particular proceedings where that individual or legal person—
(a) is a party to those proceedings;
(b) wishes to be joined as a party to those proceedings; or
(c) is contemplating issuing those proceedings.
(3) “Investigative representation” means legal representation which is limited to the investigation of the strength of the contemplated proceedings and includes the issuing and conducting of proceedings but only so far as necessary—
(a) to obtain disclosure of information relevant to the prospects of success of the proceedings;
(b) to protect the position of the individual or legal person applying for investigative representation in relation to an urgent hearing; or
(c) to protect the position of the individual or legal person applying for investigative representation in relation to the time limit for the issue of the proceedings.
(4) “Full representation” means legal representation other than investigative representation.
Regulation 14 covers advocacy at court under the heading ‘help at court’. It seems that this is intended to apply only to cases which are in scope because within Part 1 of Schedule 1 since regulation 19 covers under the heading ‘other legal services’ precisely the same services as are set out in regulation 14, namely:-
(a) instructing an advocate;
(b) preparing to provide advocacy; or
But regulation 19 continues:-
“in proceedings in relation to which the Director, having applied the relevant merits criteria in accordance with regulations 48 to 50 (application of the merits criteria in exceptional cases), has made a determination under section 10(2)(b)….(exceptional cases) of the Act.”
Regulation 48 deals with inquests. Regulation 49 requires the Director to apply the same merits criteria as would apply if the case was in scope within Part 1 of Schedule 1. Regulation 50 applies the same approach to cases which need ECF because they are not in scope for reasons other than an exclusion in Part 2 or 3 of Schedule 1.
Regulations 32 to 46 set out the criteria applicable for the various types of legal services which can be provided. Regulation 32 deals with Legal Help, which can only be provided if the Director is satisfied (a) that there is no other potential source of funding and (b) there is likely to be “sufficient benefit to the individual, having regard to all the circumstances of the case, including the circumstances of the individual, to justify the provision of Legal Help”.
Regulation 39 sets out what are described as ‘standard criteria’ for determinations for legal representation including both investigative and full. It provides:-
“An individual may qualify for legal representation only if the Director is satisfied that the following criteria are met—
(a) the individual does not have access to other potential sources of funding (other than a conditional fee agreement) from which it would be reasonable to fund the case;
(b) the case is unsuitable for a conditional fee agreement;
(c) there is no person other than the individual, including a person who might benefit from the proceedings, who can reasonably be expected to bring the proceedings;
(d) the individual has exhausted all reasonable alternatives to bringing proceedings including any complaints system, ombudsman scheme or other form of alternative dispute resolution;
(e) there is a need for representation in all the circumstances of the case including—
(i) the nature and complexity of the issues;
(ii) the existence of other proceedings; and
(iii) the interests of other parties to the proceedings; and
(f) the proceedings are not likely to be allocated to the small claims track.”
Investigative representation is dealt with in regulation 40. If the general regulation 39 criteria are met, investigative representation may be granted if the prospects of success are unclear and substantial investigative work is required and the Director has reasonable grounds for believing that on completion of the investigative work the criteria for full representation will be met both in terms of cost benefit and prospects of success.
Regulation 43 as amended provides that for the purpose of full representation:-
“The prospects of success criterion is only met if the Director is satisfied that the prospects of success are—
(a) very good, good or moderate”;
Before this amendment which came into force on 27 January 2014 the regulation contained a sub-paragraph (b) which read:-
(i) of significant wider public interest; or
(ii) a case with overwhelming importance to the individual.”
I do not know why the amendment deleting (b) was made. It is somewhat curious since in borderline cases the need for legal representation to tip the balance where for example it is necessary to test or challenge evidence or argue issues of law is apparent.
The Legal Aid (Procedure) Regulations 2012 (2012 No 3098) as their title indicates provide for how applications for the various legal services should be made. Part 8 deals with applications for ECF. In relation to legal services which are in scope, there are rights of appeal and emergency representation. These are disapplied in relation to ECF applications and rights of review are restricted – regulation 66(3). Regulation 67 provides:-
“(1) Where the civil legal services which are the subject of an application are described in a category in the Category Definitions that form part of the 2010 Standard Civil Contract or 2013 Standard Civil Contract, the application must specify—
(a) the category within which the civil legal services are described; and
(b) if the individual has identified a proposed provider, a provider with whom the Lord Chancellor has made an arrangement under section 2(1) of the Act for the provision of services which fall within the category specified in the application (unless the effective administration of justice test is satisfied).
(2) An application for a determination under section 10 of the Act must—
(a) be made to the Director in writing in a form specified by the Lord Chancellor and signed by the individual and any proposed provider; and
(b) state whether it is proposed that the services should be provided as Controlled Work, Licensed Work or under an individual case contract.”
Thus, as the claimant states in his re-amended grounds, an applicant must understand and apply the definitions of the categories of civil legal aid and services in legal and contract documents and must use the forms prescribed for the making of the application. As will become clear, these requirements do not make it at all easy for an unrepresented individual to make an application in accordance with the regulations.
Regulation 68 is headed ‘Determinations’. It provides:-
“(1) A determination under section 10 of the Act may specify that the determination is to be treated as having effect from a date earlier than the date of the determination.
(2) Where the Director makes—
(a) an exceptional case determination under section 10(2)(a) of the Act;
the Director must provide written reasons for the determination and notice of any right of review.”
The power to back date is obviously of some importance since it enables providers to do work in preparing and submitting applications and to be paid for such work. But payment can only be made if the application for ECF is successful.