Scottish Legal Aid Board wins appeal against judge’s ruling to revoke grant of legal aid

Lord Carloway
Lord Carloway

The Scottish Legal Aid Board has successfully appealed against a judge’s ruling to reduce its decision to grant civil legal aid to a man who was seeking to challenge the lawfulness of a local authority’s determinations relating to the provision of community care services to his elderly and infirm mother.

The issue for determination was whether the Lord Ordinary erred in holding that the board had acted “unfairly” towards the council in determining the legal aid applications, and the Inner House of the Court of Session disagreed with the Lord Ordinary that the grounds of appeal required to be disclosed to the opposing party in the proceedings.

The Lord President, Lord Carloway, sitting with Lord Drummond Young and Lord Malcolm, heard that the interested party, “PQ”, acting under a power of attorney, claimed that the respondent Glasgow City Council should pay for his dementia-suffering mother’s 24-hour one-to-one care at home and argued that the local authority failed to perform its statutory duty to properly assess her support needs and provide appropriate services.

However, the court upheld the decisions of the Lord Ordinary to dismiss the petition for judicial review.

Meantime the council had, separately, challenged the board’s decision to grant legal aid by lodging its own petition for judicial review.

A different Lord Ordinary granted the prayer of the petition and reduced the decisions of the board to grant legal aid, but the board appealed against that ruling.

The Lord Ordinary reasoned that the legal aid scheme was carefully calibrated to take into account the respective interests of applicant and opponent, and that “fairness” required that a party who may be “adversely affected” by a decision should be advised of at least the “gist” of the case in order to be able to make representations.

He considered that the council had a “clear interest” in the application process and that the interested party had failed to give “fair notice” of his grounds of appeal to the local authority, which was “unfair” as it prevented an opponent from active participation in the process and the board ought to have told him that it would not consider his application until he had provided notice of his case to the council.

On appeal, the board submitted that it was entitled to conclude that the interested party had probable cause and that it was reasonable that he should receive legal aid, and that it had acted “lawfully” in making legal aid available.

The council was not a “party” to the application and did not require to meet a case made by him.

It was also argued that the board, which was under a duty of confidentiality, would not require to provide notice of its case to an opponent until required by the court process and it did not have the power to refuse to consider an application until an applicant had provided sufficient notice to an opponent.

The interested party submitted that the Lord Ordinary had erred in proceeding on the basis that the determination of legal aid was some form of adjudication between two parties - the function of the board was solely to determine whether legal aid was to be made available, which was a matter between the applicant and the board.

However, the council argued that the decision to grant legal aid did not only involve the applicants; it was an administrative decision which affected opponents, due to the value of a legal aid certificate as a weapon in civil proceedings, meaning both parties had to be treated fairly and be heard and involved in the decision making process.

Allowing the appeal, the judges said they disagreed with the Lord Ordinary’s reasoning.

Delivering the opinion of the court, the Lord President said: “This application was to mount an appeal against a detailed decision of a Lord Ordinary. The facts and circumstances, although already known to the Council, were set out in full, as were the legal considerations which formed the basis of both the submissions to the Lord Ordinary and his Opinion on the merits. The Council had more than sufficient notice of what the case was about, although they hardly required much given their existing state of knowledge.

“They ought to have been able to grasp that the argument in the appeal was, as it in the event transpired, that the Lord Ordinary had erred in law in deeming that the assessment had met the relevant statutory tests. The fact that there was a review adds nothing, given that the Board seem to have been seeking a supporting opinion from counsel, which they presumably obtained and which would not have been disclosable to the Council. The Council had sufficient information upon which they could, and did, submit representations. There was no apparent unfairness in any of this.

“It follows that the court must disagree with the Lord Ordinary that the grounds of appeal required to be disclosed to the opponent. Such disclosure is not required by the regulations or, quantum valeat, the Civil Handbook. In the context of this case, it was not required in order to meet the test of fairness. The Council were able to participate actively in the legal aid process on the basis of the information they already had, and they did so.”

© Scottish Legal News Ltd 2021

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