Many thanks to David Saldanha of Howe and Co for this interesting note for legal aid lawyers:
Practitioners will be aware that the LAA has been refusing funding for Cart type judicial reviews of the Upper Tribunal on the basis that they were placed outside scope by para 19(5) of Sch 1, Part 1 of LASPO.
We were granted funding by the LAA for a proposed judicial review, R (FK) v LAA, to test the point. We are aware that other solicitors were subsequently refused funding to challenge decisions that Cart JRs were out of scope on the basis that funding has been granted to our client which would enable the point to be tested.
Just before the JR was to be lodged, the LAA stated that they proposed to reconsider their decision in our individual case and asked us not to proceed. However, we pointed out that this is a question of statutory interpretation of importance, as demonstrated by the fact that other solicitors have had funding applications refused to challenge the Upper Tribunal, and it was therefore important to establish the lawfulness or otherwise of the LAA’s position that funding for Cart type judicial reviews has been placed out of scope by LASPO. We therefore indicated that we intended to press ahead to test the LAA’s position.
We then received confirmation from the LAA’s Central Legal Team, that “For avoidance of doubt it is not my client’s current position that all Cart challenges are automatically excluded by Paragraph 19(5)(a) as a matter of law.” He added that “They are excluded, on an individual basis, if they fall within the definition of Paragraph 19(5)(a). A proposed Cart challenge must also, of course, satisfy the merits criteria.”
In those circumstances, and in light of the agreement to reconsider the individual case, we have agreed that there is no need to proceed with our challenge. The statement was made in correspondence about our client but practitioners are free to refer to this note in funding applications and to contact us if there is any dispute that this confirmation was given.
Representation: Solicitors: Howe & Co, Counsel: Mark Henderson