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R (on the application of SB and Duncan Lewis) Vs Director of the Legal Aid Agency and the Lord Chancellor (12 January 2018)

Date: 12/01/2018
Duncan Lewis, Main Solicitors, R (on the application of SB and Duncan Lewis) Vs Director of the Legal Aid Agency and the Lord Chancellor

The challenge and why it is being brought

Duncan Lewis filed a judicial review claim in the Administrative Court to challenge the failure of the Legal Aid Agency (LAA) to backdate funding for urgent work properly undertaken. The LAA granted funding on 14 September 2017, which was made available from that date, but the LAA failed to backdate that funding to extend from the date of the initial application made on 12 September 2017.

This challenge is being brought as the current regime for emergency legal aid funding creates the unacceptable risks that vulnerable individuals in need of immediate representation may be denied access to justice, and law firms providing legal aid representation may not undertake urgent work on behalf of their clients if funding cannot be backdated. The outcome of the challenge is likely to have implications for other vulnerable clients facing removal and for legal aid firms which represent them.

Law

The governing instruments are the Legal Aid, Sentencing and Punishment of Offenders Act 2012 (LASPO) and the Civil Legal Aid (Procedure) Regulations 2012 (the Regulations).

Grounds

The LAA contends that it is prohibited by the Regulations to make legal aid payments prior to the date on which it has made a formal determination. The Claimants submit that:

  1. The LAA has misunderstood its powers and the Regulations do not prohibit backdating of funding; there is no explicit statement in the Regulations that funding cannot be backdated and the express provision for backdating of funding in exceptional cases cannot be read as an implied prohibition on backdating of funding for ordinary cases.

  2. Alternatively, if the Regulations do prohibit backdating of funding to the date of the initial application, then they are ultra vires of LASPO as the prohibition is irrational and would create an unacceptable obstacle to access to justice for individuals in need of legal representation to secure effective access to court.

Representation

The lead solicitor on this case for Duncan Lewis is Jamie Bell. Toufique Hossain is the Director responsible for the challenge, and Jeremy Bloom, Caseworker, is supporting the work.

Instructed Counsel is Chris Buttler at Matrix Chambers.

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