Authors:Emma Vincent Miller
Created:2023-11-07
Last updated:2023-11-25
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The legal aid scheme still has a role, albeit smaller post-Legal Aid, Sentencing and Punishment of Offenders Act 2012 (LASPO), in facilitating public interest litigation for claimants with limited financial resources.
Judicial review (JR) remains in scope of legal aid
1Except for certain immigration cases. but only provided the case has the potential to produce a ‘benefit’ for the individual, the individual’s family or the environment (LASPO Sch 1 para 19).
What is a benefit?
‘Benefit’ under LASPO Sch 1 para 19 is given its ordinary, broad meaning and is not limited to financial benefits or material improvements to the life of the individual or their family (
R (FF) v Director of Legal Aid Casework [2020] EWHC 95 (Admin)).
An individual subject to unlawful decision-making will usually derive some psychological benefit if a court finds they were treated unlawfully, particularly when the unlawfulness was prolonged and caused harm. A benefit that is purely psychological or involves the fulfilment of a moral obligation ‘may … be a sufficient benefit’ but ‘must go beyond what would otherwise be involved in purely representative litigation’ (R (FF) at para 60(vi)).
Even if an individual won’t gain something tangible, they may still be eligible for legal aid if the case could help to ensure that an unlawful decision or policy is not applied to them again in the future – provided that risk is not too far removed. In
R (Liberty) v Director of Legal Aid Casework [2019] EWHC 1532 (Admin), the applicant sought to challenge an order targeting rough sleepers and was refused legal aid due to the lack of benefit to her individually, though she had worked in homelessness services and could have been at risk of homelessness in the future (as she was a single mother reliant on state benefits). The court held that her theoretical risk of future homelessness ‘would not … normally be a sufficient benefit’ (para 46).
The test applied is therefore more stringent than the rules around standing in JR, ie, whether the claimant has a sufficient interest in the matter to which the claim relates (Senior Courts Act 1981 s31(3)).
Legal aid merits criteria
Provided the ‘benefit’ hurdle is overcome, the legal aid merits criteria are slightly more flexible for those cases with a wider public interest. Eligibility for ‘legal representation’ (the type of legal aid needed to issue a JR claim) depends on meeting the merits criteria in Civil Legal Aid (Merits Criteria) Regulations 2013 SI No 104 (MC Regs) regs 39, 53 and 56.
The ‘standard criteria’ (reg 39) require that, in essence, there is no alternative funding available, no other suitable claimant, alternatives to litigation have been exhausted, and legal representation is needed. The public law-specific criteria require that the matter is susceptible to challenge, there is no alternative effective remedy (reg 53), and a pre-action letter has been sent (reg 56).
The proposed claim must also satisfy the ‘proportionality test’ (reg 8) and the ‘prospects of success test’ (reg 56), which for JR claims generally requires that the prospects of winning are over 50 per cent. Prospects of success can be borderline (ie, 50/50) or marginal (ie, uncertain), provided the case: is of ‘significant wider public interest’; or is of overwhelming importance to the individual; or relates to a breach of rights under the
European Convention on Human Rights.
Significant wider public interest
Slightly lower prospects of success are tolerated if the claim has the potential to produce a ‘significant wider public interest’, ie, ‘real benefits to the public at large’ other than those that normally flow from cases of that type and ‘benefits for an identifiable class of individuals’ except the applicant or their family (MC Regs reg 6).
The real issue is how the rules are applied in practice by Legal Aid Agency (LAA) decision-makers, who often take a different view from practitioners on the meaning of a benefit, prospects of success and public interest.
Some tips
•Properly flesh out more intangible or future benefits to the client.
•Ask counsel to address the legal aid merits in their advice to be sent to the LAA.
•Highlight the areas of your and counsel’s knowledge and experience that mean the LAA should afford your analysis the appropriate weight.
•Expect that your client may be refused funding and need to appeal. If a substantive legal aid application is refused you can seek internal review (Civil Legal Aid (Procedure) Regulations 2012 SI No 3098 reg 44), and if that fails appeal to an independent funding adjudicator (IFA) (reg 45),
2Note that if an emergency application for legal aid is refused, there is a right of internal review but no IFA appeal (reg 53). and seek JR thereafter.
LASPO may have significantly reduced the scope of public funding, but legal aid remains vital in ensuring public interest JRs see the light of day.