R (on the application of T) v Legal Aid Agency (formerly Legal Services Commission)  EWHC 960 (Admin) Collins J, 26 April 2013 read judgment This successful challenge to a decision by the Legal Aid Agency (LAA) arose from an expert assessor in family proceedings – not unnaturally – refusing to begin work unless funding was in place. If the LAA are asked to fund an assessment on behalf of a party with legal aid, then it is common for lawyers to obtain prior authority from the LAA to ensure that the expert will be paid for their work. If not, then the lawyers themselves can be liable for an expert’s costs. In this case, prior authority to pay for the expert assessment had been refused by the LAA thus resulting in further court hearings and delay in the resolution of the case for the children.
The application for judicial review of the LAA came before Collins J. He concluded that:
For the reasons given the decision of the defendant was wrong in law. Reasons have not been given. This might not have led to any relief beyond a declaration if I were persuaded that the only result could be that the decision was confirmed. Not only am I not so persuaded but I find it difficult to see that it would be reasonable, at least without engaging with the judge whether in writing or orally, to fail to comply with what she has decided is necessary.
The claimants are the six children of Mr & Mrs T. All the children are under 11. The London Borough of Ealing (LBE) carried out investigations as a result of which on 22nd September 2012 all six children were removed from their parents’ care and have been since in foster care. On 4th October 2012 LBE commenced proceedings for care orders in respect of the children to remove them from their parents on a permanent basis. On 9th November 2012 District Judge Gibson gave permission to instruct a named adult psychologist to report on the parents, and to instruct the Marlborough Family Service (MFS) to carry out a multi-disciplinary assessment of the parents and children. The psychologist was to be funded by the LAA. District Judge Gibson determined that the assessment should assess the attachment between the parents and the children and the parents’ capacity to meet the needs of the children. She also noted in the order that:
- the proposed assessment and report are necessary to the resolution of this case for the following reasons: a multi-disciplinary assessment is necessary for the court to determine whether the parents are able to meet the children’s needs.
- this case is exceptional on the facts because there are allegations of neglect in respect of six children under 10 years
- the costs to be incurred in the preparation of such report shall be paid by the parties in equal shares and are wholly necessary, reasonable and proportionate disbursement on the funding certificates of the publicly funded parties in this case
- the court considers the hourly rate of £90 to be reasonable in the context of their qualifications, experience and expertise.
- the field in which this expert practises and the particular expertise which they bring to bear on this case is highly specialised. There is no realistic prospect of finding an alternative expert with the necessary expertise at a lower fee.
- the issues in this case are not appropriately addressed within the evidence before the Court.
The letter of instruction was sent to MFS. However, MFS asserted that until work began, it would not be possible to decide how much time was needed to carry out the assessment and therefore what the total fee would be. Accordingly, in respect of some areas of work, minimum and maximum figures were set out. The overall maximum was £31,650 and the minimum £23,550. On 14th February 2013 the case came before District Judge Gibson for further directions. By then, an amendment to the Family Procedure Rules 2010 had produced a new Rule 25.1 which provides:-
Expert evidence will be restricted to that which in the opinion of the court is necessary to assist the court to resolve the proceedings.
District Judge Gibson concluded that the report was necessary. The LAA’s initial response to the request for prior approval was to allow only a total of 131 hours on the ground that ‘the parenting/family meetings appeared to be residential assessments and therefore outside the scope of legal aid’. This was an error. The matter was again returned to court at which time no representative of the LAA attended, despite being invited to do so. The District Judge expressed her concerns about the delays caused by the refusal to grant prior authority to the funding for the assessments which she was satisfied were necessary. On 19th March 2013 the LAA gave its amended and final decision. It accepted that 120 hours was not for residential assessments and so was within what should have been allowed. The total approved of £19,170 was less than the minimum sum assessed by MFS.
Application for Judicial Review
Collins J referred to the guidance given by Sir Nicholas Wall P in A Local Authority v S & others, and in particular:
A court considering whether to order the preparation of an expert report in care proceedings will have to decide, in accordance with the imminent amendments to FPR r 25.1, whether the report is “necessary” rather than “reasonably required” for the resolution of the case.
The President’s observation was that to a lawyer it:
…remains curious that an administrative body can effectively render nugatory a judicial decision taken in what the court perceives as the best interests of a child.
However, it is clear that the LAA does have the power to do so, since public money is at stake to refuse to fund or to fund in part only. The President stated that the remedy for practitioners was judicial review of the LAA’s decision if, of course, there were grounds for believing the decision was unlawful. It must be recognised that the LAA is entitled to question and, if persuaded that the payment for which approval is sought is excessive, to refuse to accept it. But it must act in a reasonable way. That was the crux of the application for judicial review. Seemingly the LAA has a right to question excessive expenditure, as would a person paying privately, but in doing so, they must act reasonably. It was observed that while there is no statutory requirement for reasons to be given by the LAA, the law has developed to require reasons where fairness so dictates. Cases such as these where children may be removed from parental care involve Article 8 ECHR along with considerations of the welfare of the child, which is paramount. The parties and the court, it was held, are clearly entitled to understand why a refusal to allow what the court has considered necessary has been made so that it can, if appropriate, be challenged speedily. All too often in care proceedings matters are beset by delay and so any consideration of the need for prior authority from the LAA to fund assessments before such work begins needs to happen as soon as the issue arises. The court held that it is also important for the expert to explain why the work (which will be charged for) is needed, particularly if, as in this case, the overall figure is high. Given that the instruction of experts can only follow if a judge so orders because he or she is satisfied, and gives reasons for being satisfied, that it is necessary, the LAA should only refuse to give prior authority if it has good reasons so to do. Whilst the District Judge’s decision is not binding on the LAA, it must carry very considerable weight. If there is good reason to reject it in whole or in part the LAA should engage with the court. This can be dealt with in many cases in writing. If the judge, having considered the LAA’s representations, maintains his or her decision it is difficult to see how a continued refusal to give effect to it could be other than unreasonable. In some cases oral representations may be considered necessary.
Applications for prior authority continue to increase and, unfortunately and inevitably, delays to proceedings follow. In these times of straitened timetabling time cannot be wasted. The clear message emanating from this case is that where prior authority is refused clear reasons should be provided by the LAA since they are, in their actions, overriding the decision of the court. In some circumstances it may be appropriate to invite the judge to hear from the LAA in person to explain their decision-making process or, at the very least, to explain further their decision in writing. It is not surprising that the LAA are seeking to reduce expenditure as is the case with most government departments. The LAA have very strict criteria when it comes to paying out for expert assessments and this case confirms that the LAA has a right to query and question expenditure. What they must do, however, is provide reasons for refusing to fund an assessment deemed necessary by the court. This enables the court, as is its duty, to ensure that throughout proceedings, the parties’ Article 8 rights are not breached and the child’s welfare continues to be paramount.
Eleanor Battie is a barrister in Crown Office Row Chambers Brighton
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