T, R (on the application of) v Legal Aid Agency & Ors

Where a family court has ordered expert evidence because it is necessary to resolve care proceedings, the Legal Aid Agency may question the proposed cost and refuse funding in whole or in part. It must, however, act reasonably and give reasons where fairness requires it, particularly where children’s welfare and Article 8 rights are engaged. The court’s decision is not binding on the Agency, but it carries very considerable weight. A refusal that departs from the court’s assessment without adequate reasons or proper engagement with the judge is likely to be unlawful. Resource pressures do not excuse inadequate reasons. The Agency’s decision was quashed.

Six children had been removed from their parents’ care and care proceedings were continuing in the Family Division. The family court directed a multidisciplinary assessment by the Marlborough Family Service and found the assessment necessary under Family Procedure Rules 2010, rule 25.1. The Legal Aid Agency granted prior authority only for part of the estimated cost and gave no reasons for the shortfall.

The children sought judicial review of the Agency’s decision. The central issues were whether the Agency could refuse or limit funding for expert evidence ordered by the family court, whether reasons were required, and whether the decision was unreasonable.

1. Claim allowed. The Legal Aid Agency’s decision of 19 March 2013 was quashed.
2. Under rule 25.1 of the Family Procedure Rules 2010, expert evidence in care proceedings is restricted to evidence necessary to assist the court. The court, rather than the parties, must decide necessity and give reasons. The Agency remains entitled to scrutinise the proposed payment and to refuse or limit funding where the cost is excessive, but it must act reasonably.
3. The guidance in A Local Authority v S & others [2012] 1 WLR 3098 was endorsed. Applications for prior authority should be dealt with promptly, and a refusal or limited grant should be accompanied by reasons. Judicial review is available where the Agency’s decision is manifestly unreasonable or otherwise unlawful.
4. Although no statute expressly required reasons, fairness required them in this context. Care proceedings may determine whether children remain in parental care and engage Article 8. The parties and the court were entitled to understand why funding considered necessary by the family judge had been refused in part. The Agency’s lack of resources could not make inadequate reasons adequate, following R (H) v Ashworth Hospital Authority [2003] 1 WLR 127.
5. The family judge’s assessment was not binding on the Agency, but it carried very considerable weight. If the Agency considered that assessment wrong, it should engage with the judge, in writing or orally. A continued refusal after the judge maintained the assessment would be difficult to regard as reasonable. Where a reasonable estimate was expressed as a range, approval of less than the maximum was difficult to justify if the proposed work was necessary, since payment could not exceed the work actually done.