The case of Wendy Lomax illustrates the geographic and bureaucratic lottery that civil legal aid has become
As is well documented in some areas of law, the firms and not-for-profit agencies providing legal aid are too thinly spread for potential clients to get help. The Law Society’s heat map research, which showed wide areas of the country served by only one or two providers, pretty much nailed this point with regard to housing law providers, leading to its campaign to end legal aid deserts
. For many people, getting legal aid can come down to whether they are lucky enough to live in the right part of the country or find a provider who is prepared to make an extra effort to take on their case and, if necessary, to battle with an often-obstructive Legal Aid Agency (LAA) to do so.
The case of Wendy Lomax, which was successful in the Court of Appeal ( EWCA Civ 1846
), illustrates the geographic and bureaucratic lottery that civil legal aid has become. Ms Lomax is severely disabled and lives in a specially adapted bungalow in rural north Dorset. For health reasons, she wants to move to Gosport to be near her family, who live 70 miles from her present home. Gosport BC decided that she did not meet the definition of homelessness (see Housing Act 1996 ss175 and 177).
Fortunately for Ms Lomax, she is a former member of the RAF and was able to get some advice from the RAF Benevolent Fund. It quickly decided, though, that her case was beyond its expertise but could not find a firm locally to take it on. By a stroke of good fortune, it made contact with Diane Sechi, a solicitor at South West London Law Centre (SWLLC).
Obtaining supporting evidence for the case would be crucial, so Sechi initially ran the case under SWLLC’s community care law contract. Dorset CC undertook what she describes as a ‘brilliant care needs assessment’ that supported the move to Gosport for health reasons and established the grounds to argue the case under the Housing Act.
Gosport BC’s refusal of her homelessness application was upheld on a review, and a subsequent appeal was dismissed by HHJ Sullivan QC, sitting at the County Court at Portsmouth. Following the dismissal, the barrister who had been instructed by the Law Centre, Martin Hodgson, immediately drafted a supportive opinion on the merits of the case for the purposes of extending the funding. As SWLLC only had 21 days to bring an application for leave to appeal to the Court of Appeal, securing an extension to the legal aid certificate to cover the cost of this was crucial.
Sechi says the Legal Aid Agency (LAA) has been ‘appalling’ in its treatment of Ms Lomax’s case. With the deadline to apply to the Court of Appeal looming, the LAA refused the application for legal aid to support the second appeal case on the spurious grounds that SWLLC had to apply to the judge sitting in the county court for leave to appeal. Further, the LAA maintained that it could not take a decision on the application for further funding without first seeing the transcript of the judgment. The LAA got the procedure wrong.
It’s clearly stated in the Civil Procedure Rules 1998 (CPR) that in an application for an appeal of a county court decision ‘which was itself made on appeal’ (see r52.7), permission is required from the Court of Appeal. Moreover, there is a procedure to follow to obtain an approved transcript. Not only does this take time, but it also has a cost attached. That cost was part of the funding application. This left SWLLC with the difficult decision of having to cover the costs of the application to the Court of Appeal while challenging the LAA regarding its interpretation of the CPR.
Having finally accepted the application, the LAA decided that there were insufficient merits to allow funding, notwithstanding that counsel had already provided a written opinion – after considering the Civil Legal Aid (Merits Criteria) Regulations 2013 SI No 104 – that the prospects of the appellant succeeding on a further appeal were good to very good. SWLLC challenged the LAA’s decision and, eventually, that decision went to external adjudication. An independent funding adjudicator upheld SWLLC’s application and funding was finally granted, as was permission to appeal to the Court of Appeal. Sechi believes the LAA’s erroneous understanding of procedure, which led to an unacceptable delay during a crucial time period, was tantamount to an obstruction to the administration of justice and a denial of access to rights.
In response, a LAA spokesperson said: ‘Legal aid is available right across the country and it is imperative that those entitled have sufficient access regardless of where they live. That is precisely why reviews regularly take place and we rapidly address any issues which arise in specific areas.’
According to Sechi, Gosport BC has decided not to appeal to the Supreme Court and will now carry out a further review. It is to be hoped that Ms Lomax’s case will eventually lead to a good outcome for her and her family. The case has also set a useful precedent, but the vagaries of the civil legal aid system lead us to believe that there are many people in a similar position who will never get the help they need to enforce the law.