high court finds legal aid agency “asked itself wrong
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You are here: Home / Procedure / High Court finds Legal Aid Agency “asked itself wrong question” about meansassessment
High Court finds Legal Aid Agency “asked itselfwrong question” about means assessment8 SEPTEMBER 2015 BY JAMES PACKER
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In a judgment that may be of interest to legal aid lawyers, the High Court has overturned a rejection by theLegal Aid Agency (LAA) of a legal aid claim by Duncan Lewis solicitors. The Legal Aid Agency should haveconsidered whether the means assessment conducted by Duncan Lewis, which had assessed a client KW ashaving provided sufficient evidence to show that she came within the financial threshold for legal aid, had madea reasonable judgement. The LAA had erred in refusing to fund the case on the basis that the documents reliedupon were outside of the ‘assessment window’, Cranston J held in the case of R (On the Application Of DuncanLewis (Solicitors) Ltd) v The Lord Chancellor [2015] EWHC 2498 (Admin).
The LAA accepted that in fact KW’s income at the time meant that she qualified for legal aid. However theyrefused to make any payment to the firm on the basis that the evidence obtained before work commenced onthe file did not state the exact amount of support provided under s.17 of the Children’s Act 1989. This sectionrequires local councils to provide assistance to a child, usually though his or her parents, where to fail to do sowould breach the child’s human rights. In practice the support is almost exclusively provided where the parentshave no access to mainstream benefits, most often due to their immigration status.
The High Court found that where such evidence is not provided, the firm of solicitors must ‘make a judgementon the basis of the evidence they had’. In so doing, they were bound to ‘have regard’ to the LAA’s ‘Guidance’ todetermining financial eligibility for Controlled Work. This ‘Guidance’ gives examples of types of evidence that are,and are not, satisfactory for various forms of income, but does not directly stipulate the provision of specificevidence in relation to s.17 support. There was an implication in the Guidance that there had to be confirmationwithin the last six months that the support was still being provided under s.17, but that evidence had beenobtained for KW before the file was opened.
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The High Court accepted that it is ‘well known that the level of s.1 7 support is low.’ While local authorities differin the amount that they provide, it is at a subsistence level and barring exceptional circumstances, which didnot exist in KW’s case, there was ‘no prospect the support could come near to the financial eligibility threshold’.As the solicitors had carried out the other required aspects of financial assessment the decision to refusepayment would be quashed.
A spokesman for Duncan Lewis, commented: “As practitioners in the field will know well, in recent years the LAAhas become ever more demanding where evidence of means is concerned. We consider that these demandshave now become unreasonable, and have the appearance of attempts to find bases for refusal to pay ratherthan the safe-guarding of public monies. The LAA would do better to concentrate on the backlog of applicationsawaiting consideration, rather than seeking technical reasons not to pay a provider where it is clear the client infact qualified for legal aid.”
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FILED UNDER: PROCEDURETAGGED WITH: CASES, HIGH COURT, JUDICIAL REVIEW, LEGAL AID
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