Two successful challenges to UK legal aid rules

Regulations on legal aid for judicial review

A UK Divisional Court has ruled that a controversial judicial review regulation that came into force in April 2014 was unlawful. The regulations had the effect of cutting funding for judicial review cases taken by individuals in receipt of legal aid. They provided that lawyers working for applicants in a legally aided application for judicial review would only be guaranteed payment once a claim had been granted permission to proceed.

In the current case, the applicants were represented by the access to justice charity the Public Law Project. The applicants claimed that the regulations were inconsistent with the purpose of the statutory scheme which governs access to legal aid. The Lord Chancellor defended the regulations, claiming that the regulation were introduced to incentivise providers to focus more on the proper application of the merits test before applying for judicial review.

The Court found that the regulation was incompatible with statutory purpose, because it extends beyond the circumstances which can be seen as rationally connected with the purposes of the legal aid scheme outlined in the Legal Aid, Sentencing and Punishment of Offenders Act. Success of a case is not solely based on the performance of the solicitor, and there would be external factors which cannot be foreseen and which are outside of their control. The Court found it difficult to see how the regulation meets its purpose of “incentivising” sharper application of the merits test. 

Click here to read the full decision.

Guidelines on legal aid for bereaved families

In a separate decision, a woman has won a judicial review making it easier for bereaved families to obtain legal aid. The guidelines for granting legal aid to bereaved families had set the threshold too high in order for the families to participate effectively at inquests into deaths.

Article 2 of the European Convention on Human Rights protects the right to life and places the duty on governments to investigate deaths where there is a possibility of State complicity. As part of this duty, the next-of-kin of the deceased has the right to participate in the investigation, and if proper, to be supported by legal representation or legal aid where the need arises.

The applicant is the sister of a man suffering from mental illness who threw himself underneath an underground train. She was denied legal funding at the inquest into the death of her brother, who was released from hospital despite expressing suicidal thoughts. Although the applicant was granted legal aid after she had initiated judicial review proceedings, she continued with the action in the interest of other families in similar circumstances, and because of the importance of the point of law arising. The main claim was that the Guidelines for granting legal aid to families was too restrictive and a misrepresentation of the law.

The Court found that the Guidance on granting legal aid was materially in error and could lead to erroneous decisions being taken by caseworkers. The guidance also failed to recognise that investigations into certain deaths will automatically require the involvement of the families of the deceased. Lord Justice Green stopped short of quashing the Guidelines but he did accept submissions about appropriate declaratory relief.

The Equality and Human Rights Commission acted as an independent expert in the case. A spokeswoman for the Commission said, “We are pleased that the court agreed with us that, where the situation demands it, a family involved in an inquest does need legal aid for representation.”

Click here to read the full judgment. 

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