R v Legal Aid Board, ex parte Bruce
| Jurisdiction | England & Wales |
| Judge | THE MASTER OF THE ROLLS,LORD JUSTICE STAUGHTON,LORD JUSTICE FARQUHARSON |
| Judgment Date | 11 July 1991 |
| Judgment citation (vLex) | [1991] EWCA Civ J0711-4 |
| Docket Number | 91/0716 |
| Court | Court of Appeal (Civil Division) |
| Date | 11 July 1991 |
[1991] EWCA Civ J0711-4
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
CROWN OFFICE LIST
(MR. JUSTICE HUTCHISON)
Royal Courts of Justice
The Master of the Rolls
(Lord Donaldson)
Lord Justice Staughton
Lord Justice Farquharson
91/0716
MR. DUNCAN MATHESON Q.C. (instructed by Messrs. Collyer Bristow) appeared for the Appellant.
MR. STEPHEN SEDLEY and MR. ANTHONY BRADLEY (instructed by Messrs. J. S. Sierzant & Co., Chorley, Lancashire) appeared for the Respondent.
The rules and regulations which govern entitlement to welfare benefits in a modern state are necessarily numerous, highly complex and subject to frequent variation and amendment to take account of changes in needs and policies. Yet those whom they are designed to benefit are often amongst the least able to unravel their mysteries. As a result the "take up" of benefits in many cases falls woefully short of what it should be if, as Parliament and the Government no doubt intend, every citizen were to receive the full benefits to which he or she is entitled. By way of illustration, it appears that in the months of April to September 1988 the "take up" of family credits varied between 26% and 34% of those entitled. Clearly there was, and almost certainly still is, a major problem.
In late 1987 Mrs. Bruce, who had for some years been employed as head of the Welfare Law Department of a firm of solicitors, took early retirement. She was not an admitted solicitor, but she had become an acknowledged expert in welfare law. In parenthesis it needs to be emphasised that in many "closed" systems of law, i.e. fields of law in which a citizen's rights depend not upon the general law of the land, but upon specific rules and regulations dealing with that subject matter, a general legal qualification may well be of assistance to someone who wishes to become a skilled professional adviser, but it is not essential and, by itself, wholly insufficient. Mrs. Bruce decided to establish her own independent business to tackle the problem. However she was faced with the difficulty that she could not be expected to provide a cost free service, but those whom she was seeking to help were, by definition, those who were least able to pay for professional advice.
Since entitlement to welfare benefits is regulated by law, the most obvious source of funding was the Legal Aid Board. The powers of the Legal Aid Board to provide advice, assistance or representation under Part I of the Legal Aid Act 1988 and to secure its provision under that Part by means of contracts with, or grants or loans to, other persons or bodies are not exercisable unless the Lord Chancellor so directs (see section 4(4)). At that time the Lord Chancellor had not so directed and indeed has not yet done so. Accordingly the Board could not enter into contracts with Mrs. Bruce for the provision of advice or assistance under that Part. I record this as a fact and without any overtone of criticism. That the Government is faced with a very serious problem in relation to the failure to achieve an appropriate level of "take up" of welfare benefits can hardly be doubted, but there may well be more than one method of solving, or at least ameliorating, the problem. Mrs. Bruce had therefore to look to the existing "Green Form" Scheme as a source of funding, that Scheme having been brought into existence not under Part II but under Part III of the 1988 Act (see section 8(1)).
Where advice and assistance are provided under Part III, as contrasted with that provided under Part II where no such limitation applies, it "is only [to be provided] by persons who are solicitors or barristers" (see section 2(6) of the Act and also section 2(7)). "Advice" is defined as meaning "oral or written advice on the application of English law to any particular circumstances that have arisen in relation to the person seeking the advice and as to the steps which that person might appropriately take having regard to the application of English law to those circumstances".
The very valuable service which Mrs. Bruce was seeking to provide was undoubtedly "advice" within the meaning of the Act, but she was not a solicitor or a barrister. If she gave this advice to someone with a personal problem in relation to welfare benefits, the Legal Aid Board would have no power to remunerate her under the "Green Form" Scheme.
In these circumstances Mrs. Bruce wondered whether she could not achieve her objectives by a slightly different route. Instead of advising potential claimants to welfare benefits, she might advise solicitors. They would pay for that advice and use it as the basis of the advice which they were giving their clients under the "Green Form" Scheme.
That thought gave rise to another problem. Solicitors' remuneration under the "Green Form" Scheme depends upon the amount of time which they devote to the case of a particular client. The hourly rates are prescribed and so is the maximum sum which the solicitor can claim without having obtained advance authority to devote more time to the case. For practical purposes this sum represents two hours' work. In calculating what time he has spent on a case, a solicitor can take account of time spent on it by a partner of his or "a competent and responsible representative of his who is employed in his office or is otherwise under his immediate supervision" (see regulation 20 of the Legal Advice and Assistance Regulations 1989). It is peculiar, and not perhaps wholly sensible, that solicitors' work under the Green Form scheme should be based solely on the time spent on the task. The Legal Aid Fund and assisted persons generally are better served if due to the skill of the solicitor a greater number of people can be adequately advised within a given period of time, yet the solicitor has no financial incentive to achieving this desirable result. However that is not directly material. What is material is that, whilst Mrs. Bruce was clearly competent and responsible and she might, perhaps, have been able to put herself into the position of being the representative of each of the many solicitors whom she hoped to assist, equally clearly she could not be employed in their offices or be under their immediate supervision. Some other approach had therefore to be adopted.
Solicitors could, of course, have been invited to seek Mrs. Bruce's advice and pay for it out of their own resources—in other words treat her remuneration as a recurring overhead, like office rent and staff salaries. However the more valuable, and possibly therefore the more expensive, Mrs. Bruce's advice might be, the less time that the solicitor would need to devote to any particular case and so the smaller would be his remuneration from the Legal Aid Board. As Mrs. Bruce's advice was likely to be of very considerable value to most solicitors, who cannot be expected to have her particular expertise, this approach would have virtually guaranteed that the solicitor made a significant loss on each welfare case which he handled.
That left what I might describe as the "disbursements route". Neither the Act nor the regulations contain any general definition of "disbursements", but the concept of a solicitor charging for his own costs and in addition for disbursements is of great antiquity. One would therefore expect that funding of solicitors by the Legal Aid Board would contemplate the inclusion of disbursements. And so it does. Section 10(1) of the Act requires solicitors to seek the approval of the Legal Aid Board if "the cost of giving advice or assistance" is likely to exceed the prescribed limit, which is in fact about £90.
Section 10(3) then provides that:
"For the purposes of this section the cost of giving advice or assistance shall be taken to consist of such of the following as are applicable in the circumstances, namely—
(a) any disbursements, that is to say, expenses (including fees payable to counsel) which may be incurred by the solicitor or his firm in, or in connection with, the giving of the advice or assistance; and
(b) any charges or fees (other than charges for disbursements) which would be properly chargeable by the solicitor or his firm in respect of the advice or assistance."
On 27th April 1989 when Mrs. Bruce (with a partner) carrying on business as "Analysis" with the description "Consultants to the legal profession", had been operating her service for some four months, she had about 60 solicitors as clients. Mrs. Bruce's partner then wrote to the Legal Aid Board seeking confirmation that the charges made to solicitors by Analysis would be recognised as an allowable disbursement for "Green Form" claims by solicitors. The Board replied on 7th June 1989 that:
"There is no power in the regulations for the Board to authorise any disbursement as an automatic disbursement and therefore each application has to be considered individually. Provided however that the advice and assistance is genuinely given in relation to welfare benefits, area offices have been advised that payment of a fee to your organisation is an allowable disbursement under the green form. It can therefore be paid as part of the original bill or can be the subject of an application for an extension in an appropriate case."
All went well until last summer, by which time the number of claims by solicitors which included disbursements in the form of payments to Analysis had shown a very significant increase. There is no doubt that selective leafleting campaigns had caused an increasing number of people to...
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