Is (by the Official Solicitor as Litigation Friend) v The Director of Legal Aid Casework (1ST Defendant) The Lord Chancellor (2ND Defendant)
| Jurisdiction | England & Wales |
| Judge | Mr Justice Collins |
| Judgment Date | 15 July 2015 |
| Neutral Citation | [2015] EWHC 1965 (Admin) |
| Court | Queen's Bench Division (Administrative Court) |
| Date | 15 July 2015 |
| Docket Number | Case No: CO/17381/2013 |
[2015] EWHC 1965 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
Mr Justice Collins
Case No: CO/17381/2013
and
Mr Richard Hermer, QC andMr Chris Buttler (instructed by the Public Law Project) for the Claimant
Mr Martin Chamberlain, QC, Ms Cathryn McGaheyandMr Malcolm Birdling (instructed by the Central Legal Team of the Legal Aid Agency for the 1 st Defendant and by the Treasury Solicitor for the 2 nd Defendant)
Hearing dates: 10 th– 12 th June 2015
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 [2015] 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...
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