England and Wales High Court (Administrative Court) Decisions

IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT

		Royal Courts of Justice Strand London WC2A 2LL
		29 July 2013

MR JUSTICE HOLMAN: This is an application for permission to apply for judicial review of a final decision by the Legal Services Commission to refuse to grant public funding, or legal aid, to the claimant in circumstances I will shortly describe. I mention that since these proceedings were commenced responsibility for the decision has been taken over by the Director of Legal Aid Case Work of the Legal Aid Agency, but nothing turns on that change.

The proceedings in relation to which the claimant seeks legal aid are proceedings in the Court of Protection. Those proceedings are currently proceeding in circumstances of anonymity to protect the patient whom they concern, and I will accordingly refer to the underlying facts in the most abbreviated and skeletal form.

Those proceedings have been commenced by a local authority in relation to a young man, whom I will call "the patient", who is now aged 21. Sadly, he suffers hydrocephalus and has very considerable both mental and physical impairment and disability, which will inevitably be life-long. He currently resides in a residential establishment provided and funded by the local authority. His immediate family consist of his mother and father and a younger brother, who is the claimant in the present claim. I will refer to them respectively as "the mother", "the father" and "the brother". The brother is aged 19.

It appears that a very significant issue in the proceedings in the Court of Protection is, or may be, whether the patient continues to live long-term in the residential setting provided and funded by the local authority, or moves to live in the home of his parents where (for the purposes of this judgment) the mother and the father and the brother live. I say "for the purposes of this judgment", for I understand that there may have been a recent development in that there is some difficulty in the relationship between the mother and the father, and it is not clear to me whether the father is currently living at home. But certainly the decisions of the Legal Services Commission now under challenge were all based on a factual presentation of the mother, the father and the brother all living at home together. They wish individually and collectively strongly to argue in the proceedings in the Court of Protection that the patient should now live at home with them and be cared for by them.

The mother approached the well-known firm of solicitors, Duncan Lewis, and asked and indeed instructed them to act for her. Such funds as she had were very rapidly exhausted. Duncan Lewis performed an assessment of the means and circumstances of the mother and concluded that she would not be financially eligible for any grant of public funding. Accordingly, they have never, in fact, made an application on her behalf for public funding.

The reason why they concluded that she would not be eligible is because she owns, jointly with her husband, their home. As I understand it, that property is mortgage-free and is said to be worth about £170,000, so if one notionally allows for some costs of sale, there is an equity in it of somewhere around £165,000. I have been told by Mr Jason Coppel QC, who appears on behalf of the Legal Services Commission, that the cut-off point for financial eligibility in so far as concerns a home is an equity of £100,000. Accordingly, the mother is possessed of an equity in her home of several tens of thousands of pounds in excess of that cut-off point.

Not much is known to me about the income of the mother or the father. It is said that the father is in employment with a reasonable but modest income. It has been said today that the mother has some small income of her own, but my understanding is that it is not her income which makes her financially ineligible for legal aid, it is the equity in the home. There is no evidence of any significant savings or other capital.

So far as concerns the brother, he is an undergraduate in receipt of a student loan and student funding. There is no evidence that he possesses any capital at all and no suggestion for the purposes of this hearing that he would not be fully financially eligible for public funding.

That was the essential background and financial picture when there was a hearing in the Court of Protection before Charles J, sitting as a judge of the Court of Protection, on 3 April 2012, which is, as I understand it, the only occasion of any significant hearing in the underlying proceedings to date. He was openly and frankly informed by counsel, Miss Kerry Bretherton, who appears today on behalf of the brother but appeared on that occasion on behalf of the mother, that the mother was ineligible for legal aid. Miss Bretherton openly and frankly informed Charles J that the brother sought to be joined as a party to the proceedings in the Court of Protection so as to obtain public funding, since he was financially eligible whereas his mother was not. It was not in any way suggested to Charles J, nor is it suggested to me today, that there is any different interest between the mother and the brother in the outcome that they seek and hope for in the proceedings in the Court of Protection.

The formal order made by Charles J on that occasion joined the mother as second respondent and the brother as third respondent to the proceedings. The order contains a recital in the following terms:

"And upon the court considering that [the brother's] public funding application to the Legal Services Commission should be dealt with as a matter of urgency to enable him to comply with the directions set out in this order..."

I understand from a note made by the solicitor present at the hearing before Charles J that he informally made the following comment:

"I am sure logic will be put to the LSC and, as a family member, the brother has a view he wishes to put to the court ... I acknowledge the point made by the Official Solicitor that the parents are the main respondents and they are seeking funding for their son [viz the brother] to put forward their views to the court. I say good luck to them and therefore I am prepared to join their son [viz the brother] as a respondent on the assumption that this thinking is put to the LSC and he not have a separate voice from the family."

Pausing there, as I understand it, what Charles J was making quite clear in the last sentence of that quotation is that the LSC must be told fairly and frankly, as indeed they have been, that the brother was not wishing to put forward "a separate voice" from the family. Rather, there was and is an identity of interests in the outcome, and he was being put forward as the "voice from the family", being the only member of the immediate family who is unquestionably financially eligible for public funding.

I myself first considered the present application as a paper application for permission to apply for judicial review on 20 March 2013. On that date, I decided that the question of permission should be considered at an oral hearing with both the claimant and the Legal Services Commission represented, and it is that hearing which is now taking place today. In my "reasons" of 20 March 2013, I included the following comment:

"Clearly, the preamble to, and relevant parts of, the order of Charles J made on 3 April 2013 are indeed 'a device' as Charles J knew perfectly well (see his quoted comments [which I have quoted above]) but Charles J is the lead judge of the Court of Protection and a very senior and experienced judge also of the Administrative Court. The question is not whether it is 'a device', but whether it is a lawful and permissible device..."

That does indeed seem to me still to be the question at this oral hearing.

It is now necessary to identify the essential legal framework within which this decision by the Legal Services Commission falls to be considered. Section 8 of the Access to Justice Act 1999 makes provision for the Legal Services Commission to "prepare a code setting out the criteria according to which it is to decide whether to fund (or continue to fund) services..." The relevant code made pursuant to section 8 is known as "the funding code". Section 5 of the funding code includes at paragraph 5.4: "Standard criteria for legal representation." It then provides as follows:

"5.4.1 Scope of this section

The following criteria apply to all applications for Legal Representation, in addition to the criteria relevant to the specific level of service applied for.

5.4.2 Alternative funding

An application may be refused...if there are other persons...who can reasonably be expected to bring or fund the case..."

Just pausing there, although the reference in that paragraph is to "bring...the case" it appears to be common ground between counsel today that the word "bring" is, in its context, wide enough to include not only initiating proceedings as claimant but also defending or resisting proceedings. The position of the Legal Services Commission, which Miss Bretherton accepts, is that the concept of "bringing the case" is wide enough to include bringing a case by way of resistance or defence or response.

Paragraph 5.4.5 of the code provides:

"The need for representation.

An application may be refused if it appears unreasonable to fund representation, for example in the light of the nature and complexity of the issues ... or the interests of other parties in the proceedings to which the application relates."

It is not suggested that the underlying proceedings lack complexity, but what the Legal Services Commission do focus on is the identical interests of other parties in the proceedings to which the application relates.

Side by side with the funding code, the Legal Services Commission have also published "guidance" in relation to a range of different types of case or legal situation. The guidance includes at section 9 "Standard criteria - Criteria applying to all cases". At paragraph 9.12, there is the following:

"Alternative funding

1. An application may be refused if alternative funding is available for the client ... or if there are other persons or bodies, including those who might benefit from the proceedings, who can reasonably be expected to bring or fund the case. This is a wide-ranging and important Criterion. It reflects the general principle that public funds should not be provided as part of the Community Legal Service if other sources of funding are available. Public funds are best used in circumstances where, without such funding, access to justice would be denied.

2. The regulations on financial eligibility determine what levels of income or capital a client may have and still be entitled to Legal Representation, and determine the contribution due in respect of the client's financial resources. Therefore this Criterion is concerned not with the client's own means but with other sources of funding...

3. The Criterion covers not merely those who can be expected to fund proceedings but also other persons who can reasonably be expected to bring the proceedings in question. Funding may therefore be refused if the client has been put forward simply with a view to taking advantage of the financial eligibility rules. For example, if a child applies for funding to take proceedings, for example judicial review, which could more appropriately be brought by the parents, funding will usually be refused. This is particularly relevant to challenges concerning allocation of school places which should normally be brought by the parent..."

Section 28 of the guidance makes more specific provision in relation to "Mental Capacity Act 2005" and proceedings in the Court of Protection. Paragraph 2 of section 5 provides:

"2. For cases where an application to Court may be necessary, the relative accessibility of the Court in reaching a decision in many cases will make a grant of Legal Representation unnecessary as support will be available when needed through Legal Help...

3. However there will be some cases before the Court of Protection that raise fundamental issues for the client which will require Legal Representation at a formal hearing..."

With regard to those two particular paragraphs, Mr Jason Coppel QC, on behalf of the Legal Services Commission, stresses the availability of legal help to this claimant to enable him, for instance, to prepare a well-researched and well-reasoned document for the court at the main hearing in the Court of Protection. Miss Kerry Bretherton, on behalf of the claimant, stresses that the proceedings in the Court of Protection "raise fundamental issues for the client" since they raise the issue of whether or not his brother, the patient, must remain long-term in the residential setting or may return home to live with his brother and parents as a family.

Section 28.2 of the guidance in relation to the Mental Capacity Act contains very clearly at paragraph 3 the following:

"All applications under this authorisation remain subject to the relevant regulations under the Act and all relevant criteria in the Code."

Pausing there, the effect of that paragraph seems to me to be that the code must, of course, be read and applied with regard also to the guidance, but the guidance most certainly does not supersede or replace the code.

Paragraph 28.2(5) provides as follows:

"The circumstances [for the provision of public funding] are where:

(i) the proceedings fall within paragraph 6 below AND

(ii) the court has ordered or is likely to order an oral hearing at which it will be necessary for the applicant for funding to be legally represented."

In the present case, it is common ground that the proceedings do fall within some of the criteria "within paragraph 6 below," because they include issues relating to the liberty, physical safety and right to family life of the patient. It is also common ground that Charles J has in effect ordered that there be an oral hearing. The issue is whether at that hearing "it will be necessary for the applicant for funding to be legally represented".

One can, I think, move now to the two key paragraphs, namely 28.3.8 and 28.3.9. These provide as follows:

"8. In considering whether it is necessary for the applicant to be represented at an oral hearing it will often be necessary for P to be legally represented as well as represented by a litigation friend ... Typically applicants will include close family members of 'P' or others with a lasting or enduring power of attorney ... In deciding whether it is necessary for parties to be represented we will take into account all the circumstances, in particular:

(a) The applicant's connection with 'P' and hence their interest in the proceedings

(b) The submissions that the applicant proposes to make, and whether oral advocacy as opposed to written submissions is the best means of putting that case to the Court

(c) All other parties that are likely to be before the Court and the submissions they are expected to make

(d) Any directions or indications given by the Court

(e) Whether or not the proceedings are being brought by a Local Authority or NHS body and whether or not they are being heard by a High Court Judge."

Pausing there, the present claimant's connection with P is that of brother and clearly, therefore, a very close one indeed. He undoubtedly has an entirely legitimate interest in the underlying proceedings.

I am prepared to accept that (b) is satisfied and that oral advocacy, at any rate supplementing written submissions, is likely to be the best means of putting the case before the court. Passing over (c) for a moment, there is to some extent some broad direction or indication given by Charles J that at any rate he was prepared to join the brother as a party to the proceedings for the purposes of enabling him to apply for public funding and wished him "good luck". With regard to (e), the proceedings are brought by a local authority and are anticipated to be heard by a High Court judge.

There is a tie-in between paragraph 28.3.8(c) and paragraph 28.3.9, for paragraph 9 provides as follows:

"9. In general the Commission will only grant Legal Representation if the applicant wishes to put forward a new and significant argument which would not otherwise be advanced. As a rule there should not be more parties separately represented before the Court than there are either cases to put or desired outcomes."

Finally, it is worthy of note that paragraph 28.3.10 effectively repeats what is said in paragraph 28.2.3, namely:

"Cases which come within the authorisation must still satisfy all relevant merits criteria in the Funding Code..."

So that was the framework within which the Legal Services Commission considered the application made on behalf of the claimant for public funding. There were a series of earlier decisions to which it is no longer necessary to refer, for it is common ground that the final decision and reasons of the Legal Services Commission are now to be found in a letter dated 31 October 2012, which is the decision letter under challenge. That provides, so far as material, as follows:

"The Independent Funding Adjudicator has reviewed your application for funding and has agreed with the decision of the Director. The reasons for this decision are: The client and his mother oppose a Standard Authorisation granted in respect of the patient. It is agreed that to date, both have advanced the same arguments and seek the same outcome from these proceedings.

There is no separate interest between the client and his mother. Applying 28.3.9 the Commission will only grant legal representation if a new and significant argument were to be advanced.

It is not considered reasonable to fund the third respondent to the proceedings where the second respondent should be represented, but is ineligible for public funding. Further, applying 5.4.2, funding is refused because the second respondent should reasonably fund the case.

Funding remains refused on the information provided and for the reasons above."

Miss Bretherton has made a sustained attack on that decision and the reasons given for it. She accepts from first to last that to date both have advanced the same arguments and seek the same outcome from these proceedings. There is no separate interest between her client and his mother.

She submits, however, that there is a fatal flaw in the reasoning in the next sentence, namely "Applying 28.3.9 the Commission will only grant legal representation if a new and significant argument were to be advanced". Miss Bretherton rightly points out that rule 28.3.9 does not stop with the words "new and significant argument" but continues with the words "which would not otherwise be advanced". She submits that the decision letter fatally fails to consider whether the new and significant argument that the brother wishes to advance "would not otherwise be advanced".

Further, Miss Bretherton focuses on the second sentence of rule 28.3.9 and the words "as a rule there should not be more parties separately represented before the court than there are either cases to put or desired outcomes". She says that there is no question here of the mother or indeed the father being separately represented before the court. As things stand, the only bodies that will be separately represented before the court are the applicant local authority and the Official Solicitor on behalf of P himself (and conceivably the local health trust which has also been joined as a party).

Miss Bretherton accepts, and indeed emphasises, that a particular policy purpose is to ensure that public money is not spent on legal representation in circumstances where there would be legal representation of more than one party advancing the same case or desired outcome. But, she says, the Legal Services Commission have ignored the reality of the present case, which is that no other member of the family will be separately represented and so the mischief of duplication of representation will not arise.

Miss Bretherton has accepted, however, that the specific guidance in relation to proceedings in the Court of Protection and under the Mental Capacity Act 2005 does all remain subject to the provisions in the code itself. So she accepts that she has to grapple in particular with the test in paragraph 5.4.2 of the code. She has to grapple with the last sentence of the reasons in the decision letter, namely:

"Further, applying 5.4.2, funding is refused because the second respondent should reasonably fund the case."

The core submission by Miss Bretherton is that the mother cannot reasonably be expected to bring or fund the case. She appears to have no other capital than the equity in her home and only a very modest income. Miss Bretherton submits that somebody with an equity of only about £165,000 in their home cannot reasonably be expected to sell their home in order to fund litigation of this kind. She says that, having regard to the very modest income of the mother, it is unrealistic to imagine that she can raise funds by mortgaging the home or her share in it.

The particular submission that Miss Bretherton emphasises on the facts of this case is that the equity which financially disentitles the mother to public funding is the equity in the very house in which she and the brother wish to house the patient. So, submits Miss Bretherton, there is really a circularity in the reasoning and approach of the Legal Services Commission in this case. They effectively say that some of the equity in the house can be realised if necessary to fund legal representation, and yet that is the very house that the mother has now caused to be adapted for the patient and in which she would like him to live.

More generally, Miss Bretherton submits that the financial eligibility straitjacket which applies to the mother herself is a different and more arbitrary test than the test in paragraph 5.4.2 of whether or not she "can reasonably be expected to bring or fund the case". Miss Bretherton submits that the financial eligibility criteria are general and all-embracing and do not allow case-specific consideration. On the other hand, she submits that in deciding whether or not on the facts of this case there is another person, viz the mother, who can reasonably be expected to bring or fund the case, the Legal Services Commission needed to give very case-specific consideration. If they had done so, they would have appreciated that the equity is in the very home in which the mother seeks to house the patient and so it would be not reasonable to take that equity into account.

I have to say that I am profoundly sympathetic to the family as a whole in this case. Their means appear to be relatively modest. After all, these days an equity even of £165,000 does not imply a particularly large or luxurious property. But the fact is, as Miss Bretherton accepts, that the mother is simply financially ineligible for funding, not by a small amount but really by quite a significant amount, namely the difference between the cut-off point of £100,000 and her actual equity of £165,000. However brutal it may seem, it seems to me that the essential rationale and policy behind the financial eligibility criteria is that a person whose means are outside the scope of the criteria can reasonably be expected to fund their own case, at any rate unless and until their funds have been exhausted.

It seems to me not possible to say that, although the mother is outside the financial eligibility criteria, she nevertheless cannot "reasonably be expected to bring or fund the case." It is possible to envisage a range of scenarios. It happens that the patient has a brother, namely this 19-year-old student claimant, but the facts could easily have been that there was no brother; alternatively, that there was a brother but that he was a relatively high-earning person; alternatively, that there was a brother but he himself was still a young teenager whom it would be fanciful to put forward as a respondent in circumstances such as this. It just happens that on the facts of this case there is a brother who is adult, being now 19, but has no means at all, being a student. It does in the end seem to me that it is truly a device that he is brought in as a respondent with the view to obtaining funding. I do not at all suggest that he does not have a sincere and legitimate interest in decision-making in relation to his brother. I do not at all suggest that it is not appropriate that he be a party to these proceedings. I certainly do not suggest that he would not be a very welcome participant at the final hearing from whom the court would be eager to hear. But, in my view, he cannot surmount the hurdle that there is another person who can reasonably be expected to bring or fund the case, namely his mother. Her interest is at least as great as his, and the fact is that she does have the capital at her disposal.

So, in the end, it seems to me that the decision reached by the Legal Services Commission in their decision letter is not even arguably wrong. It seems to me that they have correctly applied the central relevant criteria, namely that in paragraph 5.4.2 of the code. Since the case does not seem to me to be arguable, I must accordingly refuse permission to apply for judicial review.

Before I conclude this judgment I would like most sincerely to thank both Duncan Lewis, the solicitors, and Miss Bretherton, their counsel, both of whom have acted entirely pro bono, that is, free of any charge. I thank them for that public service.

Is there any other matter that arises? I made a limited protective costs order for the purposes of this hearing.

MISS BRETHERTON: My Lord, there are a couple of matters arising. The first is this: I would ask that you extend the protective costs order for the purposes of an application for permission to appeal.

MR JUSTICE HOLMAN: No. You can ask the Court of Appeal for that. It is not for me to give you permission to appeal to the Court of Appeal. You must ask them.

MISS BRETHERTON: I entirely appreciate with regard to permission, but I was asking about the protective costs order.

MR JUSTICE HOLMAN: No, but if you want to go to the Court of Appeal and renew your application to them, you must ask them, initially, if you wish, in writing, to see if they will give you a protective costs order for the purposes of the appeal. No, I am not going to do that. I am not going to give any encouragement to appeal, because I am afraid I am very clear in the decision I have reached. You have an absolute right to renew to the Court of Appeal, of course, but I am not going to give any encouragement to that. I am certainly not going to renew the protective costs order, no.

MISS BRETHERTON: My Lord, that was the first issue. The second issue is that I would ask permission to raise the case with the Equality and Human Rights Commission. As it concerns Court of Protection proceedings, there are restrictions on that.

MR JUSTICE HOLMAN: When you say raise it with them, why do you need permission to raise it with them?

MISS BRETHERTON: Because Court of Protection proceedings are confidential.

MR JUSTICE HOLMAN: I see. Yes, but what you want to raise is the judicial review. I have just given a public judgment.

MISS BRETHERTON: My Lord, I wish to raise two issues with them: the first is the judicial review in respect of which there is a public judgement, but of course that would involve putting before them papers which are confidential in the Court of Protection proceedings. There is the second issue, which is potentially asking them to fund the Court of Protection proceedings.

MR JUSTICE HOLMAN: You can ask anybody you like to fund it. I am not really sitting in the Court of Protection today. I know I am a judge of the Court of Protection, but I do not have the Court of Protection proceedings in front of me. You can show anybody you like the judgment that I have given today, because it will be put publicly on Bailii as soon as it is available.

MISS BRETHERTON: My Lord, I am grateful. They are all the consequential matters.

(Aside to the shorthand writer).

MR JUSTICE HOLMAN: Contrary to what I have just said, they do not automatically transcribe permission judgments. How likely are you to try to renew this to the Court of Appeal?

MISS BRETHERTON: My Lord, I need to talk to my solicitor and take instructions.

MR JUSTICE HOLMAN: I am prepared to say, since you are acting pro bono and you would have no means of funding obtaining a transcript, I will say that a transcript of the judgment I have given will be transcribed at the expense of public funds and made available to you and the Legal Services Commission.

MISS BRETHERTON: Thank you, my Lord. That is very helpful.

MR JUSTICE HOLMAN: But you may have to wait some weeks to get it. Is there anything else that you now wish to raise or say?

MISS BRETHERTON: No, thank you.

MR JUSTICE HOLMAN: Mr Coppel?

MR COPPEL: No, my Lord.

MR JUSTICE HOLMAN: Thank you both very much indeed.