Updates, commentary and advice on immigration and asylum law
New course on Immigration Act 2016 available now

High Court finds Legal Aid Agency “asked itself wrong question” about means assessment

In a judgment that may be of interest to legal aid lawyers, the High Court has overturned a rejection by the Legal Aid Agency (LAA) of a legal aid claim by Duncan Lewis solicitors. The Legal Aid Agency should have considered whether the means assessment conducted by Duncan Lewis, which had assessed a client KW as having provided sufficient evidence to show that she came within the financial threshold for legal aid, had made a reasonable judgement. The LAA had erred in refusing to fund the case on the basis that the documents relied upon were outside of the ‘assessment window’, Cranston J held in the case of R (On the Application Of Duncan Lewis (Solicitors) Ltd) v The Lord Chancellor [2015] EWHC 2498 (Admin).

The LAA accepted that in fact KW’s income at the time meant that she qualified for legal aid. However they refused to make any payment to the firm on the basis that the evidence obtained before work commenced on the file did not state the exact amount of support provided under s.17 of the Children’s Act 1989. This section requires local councils to provide assistance to a child, usually though his or her parents, where to fail to do so would breach the child’s human rights. In practice the support is almost exclusively provided where the parents have no access to mainstream benefits, most often due to their immigration status.

The High Court found that where such evidence is not provided, the firm of solicitors must ‘make a judgement on the basis of the evidence they had’. In so doing, they were bound to ‘have regard’ to the LAA’s ‘Guidance’ to determining financial eligibility for Controlled Work. This ‘Guidance’ gives examples of types of evidence that are, and are not, satisfactory for various forms of income, but does not directly stipulate the provision of specific evidence in relation to s.17 support. There was an implication in the Guidance that there had to be confirmation within the last six months that the support was still being provided under s.17, but that evidence had been obtained for KW before the file was opened.

The High Court accepted that it is ‘well known that the level of s.1 7 support is low.’ While local authorities differ in the amount that they provide, it is at a subsistence level and barring exceptional circumstances, which did not exist in KW’s case, there was ‘no prospect the support could come near to the financial eligibility threshold’. As the solicitors had carried out the other required aspects of financial assessment the decision to refuse payment would be quashed.

A spokesman for Duncan Lewis, commented: “As practitioners in the field will know well, in recent years the LAA has become ever more demanding where evidence of means is concerned. We consider that these demands have now become unreasonable, and have the appearance of attempts to find bases for refusal to pay rather than the safe-guarding of public monies. The LAA would do better to concentrate on the backlog of applications awaiting consideration, rather than seeking technical reasons not to pay a provider where it is clear the client in fact qualified for legal aid.”

James Packer
James Packer ‘Exceptionally diligent’ and ‘Exceptional’ is what Legal 500 2013 says about James Packer. James has been recognised as a Leading Lawyer in his Field within the Chambers UK 2014 edition and has been highly recommended for his expertise by Legal 500 2013 for both his Public Law and Immigration work.

Not yet a member of Free Movement?

Sign up for as little as £20 per month

Join Now

Benefits Include

  • Unlimited access to all articles
  • Access to our forums
  • E-books for free
  • Access to all online training materials
  • Downloadable training certificates
Shares