R Duncan Lewis (Solicitors) Ltd v The Lord Chancellor
| Jurisdiction | England & Wales |
| Judge | Mr Justice Cranston |
| Judgment Date | 23 July 2015 |
| Neutral Citation | [2015] EWHC 2498 (Admin) |
| Court | Queen's Bench Division (Administrative Court) |
| Date | 23 July 2015 |
| Docket Number | CO/5541/2014 |
[2015] EWHC 2498 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT
Royal Courts of Justice
Strand
London WC2A 2LL
Mr Justice Cranston
CO/5541/2014
Ms Galina Ward (instructed by Duncan Lewis Solicitors, HA1 3BN) appeared on behalf of the Claimant
Ms Fiona Scolding (instructed by the Legal Aid Agency SW1H 9AJ) appeared on behalf of the Defendant
Introduction
Duncan Lewis is a firm of solicitors. Most of its work is immigration work and much of that is publicly funded through the scheme of legal aid administered by the Legal Aid Agency, now part of the department of the defendant Lord Chancellor and Secretary of State for Justice. In this judicial review Duncan Lewis challenges the Secretary of State's decision to reduce its claim for costs to nil in a case where work was carried out for a client who was financially eligible for legal aid, although at the time the Secretary of State asserts that the firm had not conclusively established that fact to its satisfaction.
Background
In 2012 Duncan Lewis opened a file for its client, KW, on the basis of an application form signed on 7 December 2012. It provided KW with legal help and the first stage of what is called "controlled legal representation". Duncan Lewis was successful in what it did because the result was that on 12 February 2014 KW was granted what she had sought, namely leave to remain in the United Kingdom. She was able to access public funds subsequent to that decision.
When KW approached Duncan Lewis in 2012 she had informed it that she and her son were being supported by the London Borough of Ealing ("the Council") under section 17 of the Children Act 1989. She provided a letter from her allocated social worker in the Council, dated 14 November 2011, on the Council's letter head, confirming this and stating that the Council was funding accommodation at a cost of £30 per night and providing £64.30 weekly subsistence. (I interpolate to explain that the £64.30 a week grossed up to £278.63 a month.) That letter added that the support for KW and her son continued until their immigration matters were resolved. The letter also noted that KW cared for the son appropriately and that she was engaging well with the professional agencies. An address was given for where KW and her son were being accommodated.
KW also provided Duncan Lewis with another letter from the same social worker to the son's school, dated 31 July 2012, that he and his mother were being supported under section 17 of the Children Act 1989 due to their inability to access public funds, and that they were being accommodated by the Council's Children Housing Support Scheme at what was the same address as mentioned in the earlier letter.
On 5 December 2012 a solicitor at Duncan Lewis wrote to the Council's social worker that KW was coming in on the Friday (in other words 7 December) and could the Council send an updated letter about the support the Council were providing. It is obvious from that email that there had already been some contact between the solicitor at Duncan Lewis and the Council social worker. It is apparent on the correspondence that the social worker worked only part-time.
As I have said, the client came to Duncan Lewis on 7 December. No doubt the solicitor at Duncan Lewis took instructions and the client signed a legal help form. That form was in standard terms. It gave the background to the client under the heading "Financial Eligibility". The form stated that the client was not in receipt of income support, jobseeker's allowance, income related employment and support allowance or guaranteed credit, nor was the client in receipt of a NASS payment, in other words payment that those seeking asylum receive. The claimant had no partner. The client reported that she had no capital. The figure in the form for income was indicated as £278.63 per month. The dependants' allowance (for the son) was filled in as £282.40, leaving a total monthly disposable income in the negative of £3.77. The solicitor indicated in the form that evidence had been provided as to KW's means and that that evidence was the letter from the Council. The solicitor also noted that the client did not have a bank account.
In response to the Duncan Lewis email of 5 December the following week, on 10 December, the Council's social worker replied in almost identical terms to those in the letter sent to the school earlier in the year. The address for KW and the son in that letter remained the same as in the previous letters.
Duncan Lewis undertook work, as I have said, for KW, the amount exceeding the threshold for an exceptional case, at the time known as an "escape case". Accordingly, on 22 May 2014, Duncan Lewis submitted the file to the Secretary of State for billing. The Secretary of State wrote on 10 June 2014 that the claim had been reduced to nil, the reasons being:
"The Legal Help form was signed on 7/12/12, with the letter from Ealing Council dated 10/12/2012. The letter does not confirm the amount of money the client is receiving. The letter from the 14/11/11 is from outside the computation period.
Section B6 of the Funding Code states that advice and assistance may only be provided where a client has been assessed as financially eligible and that evidence of means must be obtained before financial eligibility can be assessed."
Duncan Lewis appealed that decision. To assist its case it sought further information from the Council, which provided it in a letter of 1 July 2014. That was to the effect that KW and her son had been supported under section 17 of the Children Act 1989 from 3 August 2010 until 27 March 2014, and that it:
"had placed family at the above address and provided subsistence of £193.80 every fortnight pending the outcome of their immigration application."
That address was the same address as mentioned in previous letters. The letter added that once KW had obtained leave to remain in 2014 she was assisted to claim welfare benefits and referred to the Council's Housing Department for support. The figure of £193.80 in that letter of 1 July is equivalent to £419.90 a month. It is different from that provided in the Council's previous letter, so Duncan Lewis sought clarification. In an email of 4 July 2014 the Council explained that from 28 August 2012 until 7 December 2012 KW was receiving £193.80 a fortnight, but at an earlier stage she had been in receipt of Child Benefit, which had been deducted from the subsistence payment. In fact, KW was not entitled to Child Benefit at that point. The amount of Child Benefit per week was in the region of £20.
The Secretary of State sent the appeal to an independent adjudicator, a solicitor. He upheld the Secretary of State's decision on 11 August 2014. He gave these reasons:
"This claim was nil assessed because the evidence of means provided did not confirm the value of the payments the client was receiving during the computation period and thus not acceptable. (LSC [Legal Services Commission] manual Part E12.2.1). Firms are required to conduct an adequate means assessment and obtain appropriate evidence before starting work."
The adjudication decision then referred to a limited provision, which is not, in my view, relevant in those proceedings, set out in summary form the substance of the letters from the Council, and then concluded as follows:
"Accordingly as the original assessment was based on £287 pm this is in error if she was receiving the higher sum of £96.90 so the appeal is dismissed and LLA [Legal Aid Agency] upheld."
The Secretary of State adopted the adjudicator's decision on 1 September 2014 and informed Duncan Lewis that while its net costs claimed were £1052.71, the net costs allowed were £0.00. That is the decision under challenge in this judicial review.
Legal Framework
The Access to Justice Act 1999 established the Legal Services Commission. Its functions included, under section 4, the establishment and maintenance of the Community Legal Service, in broad terms, to provide civil legal aid. Section 6(3) empowered the Legal Services Commission to fund services as part of the Community Legal Service by, inter alia, entering into contracts with persons or bodies for the provision of services by them. Section 6(4) provided that the Secretary of State could, by order, require the commission to discharge its functions in subsection (3), in accordance with an order. Section 7 of the Act provided that the Commission could only fund services for an individual as part of the Community Legal Service if that person's financial resources were such that, under the regulations, he or she was an individual who could be so funded. The section then provided in subsection (3) that regulations could include provision requiring the furnishing of information.
The regulations under the Act were the Community Legal Service (Financial) Regulations 2000, SI 2000 No 516. Regulation 4 (1) provided that subject to regulation 3, which there is no need to detail, the assessing authority, to which an application was made, should determine the financial eligibility of the client in accordance with the regulations. Regulation 4(2) stated that where the assessing authority were satisfied that the client was properly in receipt of income support, income-based jobseekers' allowance, a state pension credit, an income-related employment and support allowance or universal credit, that person should be eligible...
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