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Legal Aid Agency must pay full costs of parenting assessment in care proceedings

Successful judicial review quashes LAA’s refusal to pay full costs of assessment

Mr Justice Collins in the Administrative Court has quashed a decision of the Legal Aid Agency to refuse to pay the full costs of a parenting assessment in public law proceedings.

In R (on the application of T) v Legal Aid Agency [2013] EWHC 960 (Admin), the court heard that the London Borough of Ealing had brought care proceedings in respect of the children of couple of Bangladeshi origin. A district judge had directed that it was necessary that there be a parenting assessment, the costs to be shared equally between the parties. Reasons were provided for the necessity of the assessment. The hourly costs were in line with the regulations and a minimum and maximum number of hours were included in the order, the assessors being unable to confirm how much time was required until the work had commenced.

Prior authority was only granted for a proportion of the hours sought. The matter was returned to court. The Legal Aid Agency failed to attend, having been ordered to do so. Subsequent to that hearing, the Legal Aid Agency wrote to the solicitor for the child on 19th April 2013, granting public funds for some additional hours, but still significantly less than the minimum required as stated in the order.

The children lodged an application for judicial review upon receipt of the letter on 19th April 2013.

Collins J held:

i) The Legal Aid Agency is entitled to refuse an application for public funds if it finds that payment sought is excessive. However, it must act in a reasonable way.

ii) He reiterated the President's Guidance in A Local Authority v S & others [2012] 1 WLR 3098 that it is for the Judge to give reason as to why an order is necessary and to consider the reasonableness of the funds sought.

iii) He endorsed the President's Guidance that the Legal Aid Agency must act promptly and provide reasons for its decisions. Although there is no statutory duty to provide reasons; the law has developed to require them where fairness so dictates.

iv) The Legal Aid Agency's argument that it had insufficient resources to provide reasons was rejected.

v) The proposed expert must provide reasons for the proposed work in sufficient, but not extensive, detail.

vi) A judge's decision is not binding but carries considerable weight. If the Legal Aid Agency has good reason to reject a prior authority application, it should engage with the Court in writing or on oral application.

The decision of the 19th April 2013 was quashed. The Legal Aid Agency had failed to provide reasons. Furthermore, its refusal to grant prior authority for the required funds when a judge had ordered the assessment necessary, without engaging with the judge, was not reasonable.

Adam Tear, Solicitor Advocate of and instructed by Duncan Lewis, Solicitors, acted for the claimants. Barbara Hewson of Hardwicke  (instructed by Legal Aid Agency) acted for the defendant. George Butler of 4 Brick Court (instructed by London Borough of Ealing) acted for the local authority as an interested party.

For the judgment and summary, written by Laura McMullan of Coram Chambers, from which this news item is derived, please click here.