A Local Authority v DS – An invitation to judicially review the Legal Services Commission?
Chris McWatters and Sharon Love, barristers, of Garden Court Chambers consider the implications of the President’s Guidance on seeking prior approval of the LSC to adduce expert evidence in family proceedings.
Christopher McWatters and Sharon Love, barristers, Garden Court Chambers
In the past, if you wished to instruct an expert in care proceedings, you would request a direction from the court, deeming the instruction 'a reasonable and necessary disbursement'. The report would then be completed and the bill for the expert would be paid for by the Legal Services Commission at the end of the proceedings.
Not so anymore. Due to pressure on finances, the LSC is now more likely to refuse to pay the expert's bill, whether or not there is a court direction. This is because the Commission is not bound by thatdirection. The result is that solicitors now feel compelled to apply for prior authority from the LSC before instructing an expert to insure against them having to foot the expert's bill.
Many applications for prior authority have been refused by the LSC or take some time to process. This in turn has brought many care proceedings throughout the country to a standstill.
This was the case in A Local Authority v DS  EWHC 1442 (Fam) (Re DS)where the refusal of the LSC to grant prior authority to parents' solicitors to instruct an independent social worker caused such delay that the family proceedings court referred the matter to the Principal Registry. The Principal Registry in turn referred it as a test case to the President of the Family Division for guidance to courts on how to deal with applications to instruct experts that would require prior authority from the LSC.
The nub of the President's guidance in Re DS is that, if the court is to direct that an expert is instructed, it needs to set out its reasons in great detail in the hope that the LSC will take note of it. At paragraph 54 of the judgment, the President sets out a suggested wording for such a direction –
54. A suggested form of order, depending on the facts of the individual case, could be in the following terms: -
a) The proposed assessment and report by X (as set out in paragraph 2 of this order) are vital to the resolution of this case.
b) This case is exceptional on its facts.
c) The costs to be incurred in the preparation of such reports are wholly necessary, reasonable and proportionate disbursement on the funding certificates of the publicly funded parties in this case.
d) The court considers X's hourly rate of £y and the estimated costs of the assessment report to be reasonable in the context of (his) qualifications, experience and expertise.
e) The field in which X practises, and the particular expertise which (he) brings to bear on cases involving (subject) are highly specialised. There is no realistic prospect of finding an alternative expert with the necessary expertise at lower fee.
f) (The court considers that any further delay in order to give the LSC the (further) opportunity to consider an application for prior authority to incur the costs of the proposed amendment or report would be wholly outside the child(ren)'s timescale(s).
Accordingly, in order to persuade the court to allow such a direction, a practitioner will have to embark on a lengthy and detailed argument for the instruction of a particular expert, setting out the reasons why it is 'necessary' (as opposed to 'reasonably required' – due to proposed changes to Part 25.1 of FPR 2010) for the case, as well as why it is money worth spending. There is already a requirement in Practice Direction 25A that the case for the instruction of an expert should be set out, but in practice, it has been fairly routine to have a legal advisor rubber stamp a direction for the instruction of an expert whose identity could be agreed at a future date. Those days are gone.
It may be that the hourly rate of the proposed expert is within the LSC rates, as set out in Schedule 6 to the Community Legal Services (Funding) (Amendment No 2) Order 2011. If this is the case, then the only likely issue with the LSC will be the hours required to complete the report and/or assessment. The President has attached a document from the LSC to his judgment which, among other things, points out that the LSC has been refusing applications for prior authority on the grounds that the hours requested to conduct a report are excessive. Currently, it seems that many solicitors are happy to instruct an expert without applying for prior authority, on the basis that they are within the LSC rates and their proposed hours are not excessive. However, as an insurance policy, it is probably as well to request the court to consider the proposed hours of the expert just in case, and invite the court to conclude that such proposed hours are wholly necessary, reasonable and proportionate, as per Re DS.
If the expert's rates are above those set out in schedule 6, then the LSC can choose to increase the fixed rates if it considers it reasonable to do so in exceptional circumstances. This is elaborated on by the President at para 39 and 40:
"39. Schedule 5 of the Community Legal Services (Funding) Order 2007 came into force on 9 May 2011. It limits the payment by the LSC to an ISW to the rate of £30 an hour. The LSC does have a discretion which, for present purposes, is contained in paragraph 2 to section 2 of Schedule 6 which sets out the meaning of exceptional circumstances in article 5(2)(e)(ii), as follows –
'……exceptional circumstances are where the expert's evidence is key to the client's case and either –
a) the complexity of the material is such that an expert with a high level of seniority is required, or b) the material is of such a specialised and unusual nature that only very few experts are available to provide the necessary evidence.'
40. Article 5(2)(e)(ii) of the Funding Order provides:
'5(2) Any contract for the provision of funded services under section 6(3) of the [Access to Justice] Act - ... (e) must .. (ii) provide that the Commission may increase the fixed fees or rates set out in Section 1 of Schedule 6 if it considers it reasonable to do so due to exceptional circumstances as defined in Section 2 of Schedule 6."
Clearly, the President had this legislation in mind when he proposed the draft order in paragraph 54. Therefore, if an expert is requesting a higher rate than those set out in Schedule 6, it will be important to persuade the family court (and indeed the administrative court if it goes to judicial review) of the complexity of the case, that the proposed expert is of high seniority, or indeed that the area of expertise is of an unusual and specialized nature (ie one that is not listed in Schedule 6).
It is to be hoped that a direction / judgment from the court which complies with the guidance in Re DS will persuade the LSC to grant prior authority. However, as the President points out, the LSC is not bound by an order of the court to fund the instruction of an expert. So what to do if it refuses? The President seems quite clear on this at paragraph 38:
"Their [parents' (and lawyers')] remedy, if they take the view that the decision of the LSC is Wednesbury unreasonable or can be struck down for any other public law reason is to apply for judicial review."
He also states at paragraph 48:
"It follows that if the expert's time frame is rejected by the LSC: (a) there is a rational basis for a challenge, and (b) if the LSC's refusal is manifestly unreasonable, there may be grounds for judicial review of the decision."
Family practitioners will find it a daunting prospect to judicially review the LSC, their own paymaster. So how does a family practitioner go about judicially reviewing the LSC?
First of all, you will need to be sure that you have gone through the LSC's internal appeal procedure, stressing the urgency of the application. If the appeal is rejected, then the next obstacle is getting funding for a judicial review. The irony here is that a family solicitor needs to secure funding from the same institution (the LSC) whose decision they propose to challenge. However, it should be remembered that the LSC department that deals with the funding of experts is separate from that which deals with the funding of family solicitors. Family solicitors are under a professional obligation to act in the best interests of their client, which could clearly include a judicial review of this kind. There are, of course, solicitors who specialise in judicial review with civil contracts with the LSC, who could be instructed in respect of this discrete issue, but this could slow the process down, inevitably leading to further delay to the six month time frame of the care proceedings.
The test for funding is one of means and merits. If you are representing a parent in care proceedings, it is unusual for means to be an issue. So far as merit is concerned, if the LSC has refused to fund an expert when the family court has ruled, as per Re DS, that it is necessary and reasonable, then on the face of it, it would seem that the application for judicial review has sufficient merit for funding the application.
The delay of such an application is clearly an issue, and waiting for approval for funding from the LSC would only slow the process down even further. However with judicial review applications, it is quite usual for solicitors to act under devolved powers, especially in urgent cases. Before embarking on the application, it would be necessary to comply with the Pre Action Protocol, which would oblige an applicant to write to the LSC, informing it of the intention to apply for judicial review, and attempting to establish whether the matter can be settled without litigation. The deadline for this is normally 14 days. Again, since the clock is ticking in the care proceedings, it's arguable that this time frame could be reduced. It should be noted that there is an expectation in JR proceedings that an attempt at arbitrating the issue should be made. Again, this has to be balanced against the issue of delay. However it would be as well to try to see whether a proposed expert could achieve an acceptable report/assessment in less time and for less money, without compromising the requisite evidence of the court. This could be suggested as a possible way forward to the LSC in the first instance.
When making the application, it will be important to stress the urgency of the case, due to the six- month time frame in the family proceedings. It may not be as urgent as an asylum case, where applicants often have to call up judges after hours on an ex parte basis to prevent their client being deported. However, the Administrative Court should be sympathetic to the request of an urgent hearing in such an application, There are currently two judges who sit in both the Administrative Court and the Family Division: Mr Justice Charles and Mr Justice Holman. They should be requested in the first instance, since they will be attuned to the issues of delay in family cases. It goes without saying that a swift resolution to the matter should be advocated in the first instance (the permission stage) so that there is not a lengthy wait for a full hearing.
The central issue to be argued will be whether or not the LSC has acted irrationally and / or unreasonably when refusing to fund an expert. On the face of it, if the family court has ruled that the instruction for the expert is necessary and reasonable, as per Re DS, it will appear as though the LSC has acted unreasonably and irrationally. However the LSC may argue that the family court was wrong to come to the conclusion that it did, which means that the entire application will be revisited. One possible area of weakness will be in relation to the cost of the expert being necessary, reasonable and proportionate, which the LSC may well argue the family court is ill-equipped to rule on. That is why it is important to ensure that the direction from the court is detailed as to why the cost really is necessary, reasonable and proportionate. In the event that a proposed expert wants to be paid more than the levels set by the funding order, it will be important to be able to argue that his or her seniority, or degree of specialisation, brings genuine added value. In as much as there will be a judicial review of the LSC's refusal to grant prior authority, the LSC will be arguing that the family court was wrong to make the direction in the first place, which means the Administrative Court will inevitably be reviewing that decision. That is why it is so important that the family court's direction is backed up by solid facts, in particular that the cost of the expert and their proposed times are both reasonable and necessary to the just disposal of the case.
There are also possible arguments under the Human Rights Act 1998. There will inevitably be a breach of Article 6 – how can there be a fair trial when pivotal evidence which the court has deemed is necessary to justly dispose of the case is not available to assist the court? Furthermore, one could argue a breach of Article 8 ECHR in that, by delaying family proceedings through failing to fund a proposed expert, the LSC will have interfered with the parents' and the child's right to a family life by delaying the return of the child to its family. An application for damages could also be made on this point. In arguing any point on delay by the LSC, reliance should be placed on the recent case of Jacub Stopyra v Poland : Debreceni v Hungary  EWHC 1787 (Admin). In this case the court urged the Ministry of Justice to urgently review the current system of funding experts in extradition cases, in order to prevent unacceptable delays.
It is not just the parents who should consider judicially reviewing the LSC. Local authorities are frequently put in a position where they are forced to pay the bill for an expert's fee if the LSC refuses to. The local authority would certainly have standing, and could go on to argue for a costs order in the event that they won.
It would seem as though the LSC is expecting at some stage to be judicially reviewed from Re DS (at para 34), in which the President refers to a letter sent by the LSC to the court, which reads: "If the solicitors disagree with the LSC's decision on their application for prior authority, they have the right to challenge the LSC's decision by way of judicial review if they consider the LSC's stance to be incorrect or otherwise unlawful". As the President says, the LSC is a creature of statute. It abides by rules and regulations, many of its own making, and its role, the logic of its decision-making needs to be robustly tested. If the question of the funding of experts continues to be controversial, it should and no doubt will be discussed in the Administrative Court.