Scottish Court of Session Decisions

OUTER HOUSE, COURT OF SESSION [2011] CSOH 134
P397/11	OPINION OF LORD MALCOLM in the Petition EM (AP) Petitioner; for Judicial Review of decisions of the Scottish Legal Aid Board Respondent: ­­­­­­­­­­­­­­­­­________________

Petitioner: O'Neill, QC; Drummond Miller LLP

First Respondent: Lord Davidson of Glen Clova, QC; Solicitor for the Scottish

Legal Aid Board

Second Respondent: Ms O'Neill, solicitor advocate; Scottish Government Legal Directorate

16 August 2011

[1] The petitioner (EM) was born on 30 August 1985. The first respondent is the Scottish Legal Aid Board (SLAB). The second respondent is the Lord Advocate as representing the Scottish Ministers. In her Note of Argument the petitioner explains the background circumstances of this application for judicial review as follows:

"The petitioner is 25 years old. She has learning difficulties, which require her to receive support in writing and speaking. She is the mother of a child, RRG, who is 3 years old. RRG has lived with his paternal grandparents since he was six weeks old. By 20 May 2008 the principal reporter had referred RRG's case to a children's hearing. At a children's hearing on 20 May 2008 the petitioner denied the grounds of referral. The children's hearing directed the principal reporter to apply to the sheriff for a finding as to whether or not the grounds were established. On 14 August 2008 the sheriff at Glasgow found that the grounds were established. He remitted the case to the principal reporter, who arranged a children's hearing. It took place on 30 September 2008. It made a supervision requirement in respect of RRG requiring him to live with his paternal grandparents and gave the petitioner contact with them. The petitioner would like her child to live with her. She thinks that she would be able to care for him if she received assistance from her local authority's social work department. If he were not to live with her, the petitioner would like to have more contact with RRG than is presently permitted.

In May 2009 the petitioner consulted agents and sought their advice on an application to the children's hearing for a variation of the supervision requirement to which RRG was subject. She is unemployed and in receipt of state benefits. She received advice and assistance in terms of the Legal Aid (Scotland) Act 1986 to an expenditure limit of £95. Social workers from the petitioner's local authority have given children's hearings adverse information relevant to the question of the petitioner's capacity to care for RRG. Therefore her agents considered that they should obtain a report on her parenting skills from a skilled person who is independent of those social workers. If its terms were favourable, the petitioner's agents intended to rely upon it in an application to the children's hearing for review of the supervision requirement. The petitioner's agents considered that a supportive parenting assessment was vital to the petitioner's case for review. Without it, they could not properly advise the petitioner. The petitioner cannot afford to pay for a parenting assessment report. Therefore on 26 May 2009 her agents made an application to SLAB for an increase in authorised expenditure to allow such a report to be instructed. That application was refused. On 26 May 2009 the petitioner made an application for review of the supervision requirement. The first children's hearing that took place in respect of RRG after the application was on 18 September 2009. That hearing had not been fixed as at the date of the application."

The application for an increase in authorised expenditure
[2] On or about 27 May 2009 the petitioner's agents applied to the first respondent for an increase in authorised expenditure for the purposes of instructing a parenting assessment report, and liaising with the client, social work department and author of the report as required. The increase sought (reflecting the cost of the parenting assessment) was £6,853.75. By letter of 8 June 2009 the first respondent refused the said application. At least some of the relevant paperwork in the case has been lodged. The reason given for the refusal was:

"Obtaining a report to place before a children's hearing is a step in conducting or defending the proceedings which is ABWOR as defined in section 6(1)(b) of the Legal Aid (Scotland) Act 1986. ABWOR is not available for children's hearings." (ABWOR is assistance by way of representation).

As discussed more fully below, it can be noted that this reason is materially different from, or at least less complete than the explanation given to this court by counsel for the Board which focussed on the importance of the application coming after the request for a further hearing, rather than as a preparatory step towards a possible request for a further hearing. The submission was that this differentiates the current circumstances from all other examples of the Board granting sanction for the obtaining of reports which may ultimately be used in proceedings, and that it is this which takes the case out of the "advice and assistance" regime as defined in section 6 of the Act.

[3] The initial refusal and all subsequent decisions were accompanied by the information that the petitioner's agents could request a reconsideration. By letter of 29 June 2009 agents asked for a review. Amongst other things they said:

"Clearly we require an increase to obtain the parenting assessment, which is crucial to our client's case. We request that you reconsider your decision and let us know urgently if the increase can now be granted. Without the increase being granted we do not understand how we would properly, with evidence, support our client's case, as the parenting assessment is vital to our client."

Thus at that stage the Board was informed that the petitioner's agents took the view that without a supportive expert report they would be unable to prosecute their client's case before a children's hearing. Given the Board's position as explained by their counsel, one might have expected a response along the lines that, as the Board saw it, the key problem was that the application was being made after the request for a fresh children's hearing, and that if that request was withdrawn, the Board would be free to consider the application on its merits. However the Board's response was to allow a new authorised expenditure limit of £200 to permit advice, correspondence and meeting with the client. The Board also stated:

"The request for a reconsideration does not address our reasons previously given for refusal. Simply put, we would be acting ultra vires if we were to sanction the proposed outlay. We have no discretion in this regard."

This provoked a letter seeking a further reconsideration, in which agents for the petitioners stated:

"Returning to the definition in section 6, assistance by way of representation includes instituting, conducting or defending any proceedings before a court or a tribunal or in connection with a statutory inquiry. If the Legal Aid Board's interpretation of section 6 is that it prevents a solicitor from advising a client on children's hearings, preparing information that should be put before a children's hearing, or indeed writing to the reporter to the children's hearing to ask for a children's hearing to be set down where the parent wishes a supervision requirement to be reviewed, then we would be grateful if the Legal Aid Board could clearly state that. Not only is that a matter that requires urgent judicial review as to its compatibility with the ECHR, but it is also a matter of national importance that the Scottish Government does not provide a scheme of state funded legal assistance which allows parents to employ a solicitor for assistance with such matters. We are extremely concerned if that is the definition which the Legal Aid Board are taking.

In our submission, the stance taken by the Legal Aid Board is wrong. We would respectfully point out that firstly, obtaining the report is not instituting, conducting or defending proceedings. The report will be used in the conduct of proceedings, but conducting is a verb which we think properly interpreted means that the solicitor is conducting the proceedings. Helping the client in preparation for the proceedings is not conducting proceedings. In our experience, advice and assistance has been used to assist the client by preparing and lodging an application for an Employment Tribunal on the parents' behalf, but ABWOR sought if actual representation before the ET is merited. The children's hearing seems to us to be a similar situation. We would also point out that we have previously obtained parenting assessments on other files.

Please note that the application for this increase was first submitted by fax on 24 May 2009. This was after a lengthy delay in obtaining a company who was prepared to do the report and obtaining a quote from them. The client had instructed us to obtain such a report some weeks before it. The continuing delay is causing our client significant disadvantage and unless this matter is urgently resolved, is likely to raise further issues regarding the availability of legal aid with article 8 of the ECHR. You may be aware of a line of cases from the European Court of Human Rights that indicate that cases involving the relationship between parent and child must be considered with 'extraordinary diligence'. Please confirm by return that the increase has now been granted in full."

The Board's response was:

"Previous refusals are adhered to. Where a report is being prepared that may be used to support any argument put before the hearing then the preparation of the report amounts to a step in proceedings. We do not cover these costs unless ABWOR is available and that has been our position for many years."

[4] Again the agents were alerted to the possibility of a review of the decision. This was sought under the following explanation:

"Our analogy is that writing to the reporter asking for a children's hearing to be assigned is similarly a step in the proceedings. There seems to be a wider issue therefore that legal aid is not available for any of the preparatory steps prior to a children's hearing being assigned. ... We would be grateful if you could confirm that there is no other way of financing obtaining such a report in terms of having the report before the children's hearing to argue for an increase in contact. We consider that this breaches our client's human rights, and are taking our client's instruction on whether she wishes to pursue this matter further."

The Board's response was:

"The previous reasons for refusal are adhered to. This work is within the scope of representations and in the circumstances an increase cannot be granted to meet the cost of this work."

A further request for review prompted a refusal for the following reason: "We regret that we do not have the statutory authority to comply with your request."

The application for legal aid for the current proceedings
[5] Plainly the case is and was an anxious one, involving the interests and welfare of a young child and the rights of his mother. Faced with such cryptic responses and an apparent refusal to discuss or engage with agents on the matter, their next step was to lodge an application for legal aid to seek judicial review of the Board's decisions. This application was refused on the following basis:

"It is unreasonable to grant legal aid in the circumstances. This is an unreasonable use of public funds. The opponents have simply applied the terms of the legislation. Any such judicial review application should be directed against the legislature. The criteria for judicial review against the Board have not been adequately addressed."

Again the Board mentioned the possibility of a request for a review of this decision, and by letter of 29 January 2010 agents wrote at length and in detail explaining why, in their view, the board had erred in law and the application should be granted. Amongst other things the letter stated:

"We find it disappointing that SLAB have not responded in any detail to (the earlier letter setting out agents' interpretation of the legislation) and subsequent correspondence has given me a one or two line response. This is particularly so given that we are having to lay our arguments out in some detail to SLAB both in connection with the increase itself, and the application for civil legal aid for judicial review but with little feedback."

There is a gap in the correspondence lodged in court, however the matter would appear to have been referred to the Sheriff Principal of Lothian and Borders for an independent decision on 19 May 2010. By letter of 26 October 2010 the Sheriff Principal indicated that in his view legal aid should be granted for the purpose of allowing the petitioner to obtain advice from counsel as to the prospects of success. Again there is a gap in the paperwork until the issue of a legal aid certificate for the current judicial review proceedings.

The submissions of parties on section 6 of the 1986 Act
[6] The first question to be considered is whether SLAB was correct in its interpretation of the relevant statutory provisions. As the discussion proceeded at the first hearing it became plain that the issue between the petitioner and SLAB is a short, narrow and, to an extent, technical one. It turns on the application of the definition of "assistance by way of representation" (ABWOR) in section 6(1) of the Legal Aid (Scotland) 1986, namely that it means:

"advice and assistance provided to a person by taking on his behalf any step in instituting, conducting or defending any proceedings -

(a) before a court or tribunal; or

(b) in connection with a statutory inquiry,

whether by representing him in those proceedings or by otherwise taking any step on his behalf (as distinct from assisting him in taking such a step on his own behalf)."

[7] On behalf of the Board Lord Davidson of Glen Clova QC indicated that if sanction for the parenting assessment report had been sought before the raising of proceedings, it would have been considered on its merits. It would have fallen within the "advice and assistance" regime as defined in section 6 of the Act. However the request for a further children's hearing having been made before the application to the Board, the matter fell within the advice by way of representation regime, which, unlike advice and assistance, is not available in respect of children's hearings. It was on this basis that the application was rejected as being outwith the Board's powers.

[8] Counsel pointed to the chronology of events. The petitioner's agents requested a further children's hearing to seek residence, failing which more extensive contact. Thereafter application was made to the Board for an increase in authorised expenditure to cover the cost of a parenting assessment report. Given that the request for a further children's hearing had already been made, this was a request for sanction relating to a step in those proceedings to be carried out by the agents on behalf of the petitioner. In particular, it related to the agents "conducting" those proceedings on behalf of their client, thus it fell within the scope of ABWOR. Had the request been made before the proceedings were requested, then this would not have been the case and the Board would have considered the application on its merits. On that factual hypothesis, on receipt of the report the agents could have advised the petitioner as to whether a request for a further children's hearing should or should not be made. Counsel submitted that the agents had "jumped the gun".

[9] On behalf of the petitioner Mr O'Neill, QC explained that the request for a further hearing occurred only shortly before the lodging of the application with the Board, and was designed to trigger the process as soon as possible. It takes some months to set up a children's hearing. In the meantime the report was needed to allow agents to advise the petitioner as to whether she did or did not have reasonable prospects at such a further hearing. The considered view of the petitioner's agents was that a supportive expert report was a prerequisite for any chance of success at a children's hearing.

Discussion and decision
[10] I have already made reference to the cryptic and unhelpful responses by the Board to the various applications made to it, and to the petitioner's agents' disappointment at the Board's failure to discuss the matter or engage with them, particularly standing their concerns as to the urgency of the situation, their view of the relevant statutory provisions, and the general practice of the Board. It is unfortunate that the Board did not fully explain the rationale of the alleged illegality to the petitioner's agents at the time. The matter could then have been resolved by the petitioner's agents withdrawing the request for a further hearing and, if necessary, resubmitting the application to the Board, when, on the Board's approach, it would have the power to consider the application on its merits. The consequences of this would have been to postpone the date of any hearing on the substance of the petitioner's application for residence, which failing more contact. However that would have been a small price to pay in return for progress on the substance of the application to the Board since, on the Board's analysis as explained by Lord Davidson, the alleged illegality would have been removed. Of course the Board may still have refused the application, but no issue of ultra vires action would have arisen. Against this background it is melancholy to reflect on the public funds expended in the current proceedings on behalf of the petitioner, the Board and the Scottish Ministers.

[11] I have to determine whether the Board's decision was correct in that the application having post-dated the request for a further children's hearing, it fell within advice by way of representation rather than the advice and assistance regime. The petitioner's averments are that:

"The petitioner's agents considered that a supportive parenting assessment was vital to the petitioner's case for review. They considered that they could not properly advise the petitioner without it."

Given the overall circumstances it is entirely understandable that without expert assistance the view was that the petitioner had no chance of success before a children's hearing. In short the underlying reality was that an expert report was being sought to establish whether the petitioner's request for a hearing should or should not be maintained. This was explained to the Board in the correspondence mentioned earlier. A similar exercise is carried out regularly in a wide variety of circumstances, for example in cases of alleged clinical negligence, all under the advice and assistance regime. However, the Board relies upon the fact that a request for a further children's hearing had been made before the application for sanction for a parenting assessment report. In my view it would be unreal to ignore the substance of the matter, namely that the agents' request was a step in the course of assessing whether proceedings were worthwhile. The proposal to seek an expert report was not truly part of the proceedings, but rather was a prerequisite to giving advice as to whether the petitioner had a stateable case to be put to the children's hearing. I accept the submission in the Note of Argument on behalf of the petitioner that, at most, this was a step of a preparatory nature, not one which could properly be characterised as "conducting" proceedings within the meaning of the definition of ABWOR in section 6 of the Act. Thus, on the particular facts of this case, I reject the argument presented on behalf of the Board, and hold that they ought to have considered the request on its merits.

[12] It is perhaps worth observing that the distinction between "advice and assistance" and "advice by way of representation", both of which are defined in section 6 of the 1986 Act, is less than clear. The advice and assistance regime appears to cover any appropriate steps taken by a solicitor on behalf of a client: see section 6(1)(a)(ii) and (b), especially the phrase "or otherwise" in the former sub-section. If I had required to resolve the boundaries of the two regimes as set out in section 6(1) of the 1986 Act, I would have placed emphasis on the concept of "representation" in ABWOR. This seems to be an important difference between the two regimes. One relates to advice and assistance, the other to representation, with only the latter confined to steps taken in the course of the institution, conduct or defence of proceedings. Representation can cover taking such a step on behalf of an assisted person in proceedings, although this is expressly distinguished from "assisting him in taking such a step on his own behalf." I have difficulty in categorising the instructing of an expert report on behalf of a client as "representing" him in any normal sense of the word. It is also not easy to describe it as taking a step on his behalf in the "conducting" of proceedings. To my mind it is more natural to regard it as simply assisting someone in respect of proceedings or possible proceedings, all as covered by the first part of section 6(1). Advice and assistance is broader than ABWOR in respect that it is not limited to steps taken in "instituting, conducting or defending any proceedings." As I read the relevant provisions it can cover any appropriate step taken on behalf of a client, and perhaps that is the simplest and best description for what lay behind the request for an increase in authorised expenditure. However, since I have rejected the sole basis upon which counsel sought to defend the Board's decision, that is sufficient to resolve the present application for judicial review. The agents' request should have been dealt with in the context of the provision of advice and assistance.

The alternative submissions
[13] In these circumstances it is also unnecessary to consider the petitioner's submission that there were no live proceedings until a children's hearing was fixed. Furthermore, although they took up much of the written and oral submissions, and the vast bulk of the bundles of authorities, it is not necessary to decide either of the petitioner's alternative submissions based on the Human Rights Act 1998. If I am wrong in the above decision, the problem is easily resolved by making an application in the absence of any request for a further children's hearing, thus there is no need to consider the application of section 3 of the Human Rights Act to the relevant terms of section 6 of the 1986 Act, even assuming that an issue of incompatibility with a Convention right did arise.

[14] The contention which engaged the interest and involvement of the Scottish Ministers was a submission that, on one view of matters, they had failed to empower the Board to grant an application for a parenting report, and thus were in breach of the terms of section 57(2) of the Scotland Act 1998, all under reference to articles 6 and 8 of the ECHR. If this matter had arisen for decision, I would have held that there was no breach of a Convention right, if only because, on this hypothesis, the difficulty arises only because of the petitioner's agents' decision to lodge the application after seeking a further children's hearing. In these circumstances, I need not address the discussion on Convention related matters, though suffice to say that I found the submissions made on behalf of the Scottish Ministers by Ms O'Neill to be cogent and convincing. By contrast, Mr O'Neill's position appeared to be predicated on the proposition that, while an expansive Convention compliant interpretation should be placed upon the relevant part of section 6 of the 1986 Act, a narrow and strictly confined interpretation should be placed upon those provisions relied upon by the Scottish Ministers as showing that the overall regime did not infringe the petitioner's rights. When pressed Mr O'Neill was unable to provide any justification or explanation for this approach.

[15] The overall result is that I shall uphold the petitioner's first plea-in-law and reduce the decisions of the Scottish Legal Aid Board dated 8 June, 2 July, 3 and 24 August and 7 September, all of 2009. In the meantime I shall reserve the question of expenses.