Cleland, R (On the Application Of) v Legal Aid Agency

Legal aid contribution assessments are made by reference to the information and resources relevant at the prescribed time. Later changes in financial circumstances do not require retrospective alteration of an existing order unless the applicant uses the review or reassessment procedure provided by the applicable regulations. A judicial review challenge to an order may fail where the applicant did not make that procedural application and the challenge is brought out of time. Resources frozen at the date relevant to the assessment may nevertheless fall within the calculation. A separate argument that resources were deliberately deprived of was rejected on the facts.

The claimant sought permission to apply for judicial review of income and capital contribution orders made in connection with criminal legal aid. An income contribution order was made in June 2011 and varied in August 2011. A capital contribution order made in December 2012 was replaced in January 2013 because of a defect.

The claimant challenged the inclusion of approximately £30,000 as available savings, relying on money that had previously been frozen by the Revenue and was later released and spent on household expenses. Permission had been refused on paper by His Honour Judge Worster on 6 November 2014. The claimant renewed the application. The central issue was whether the existing orders could properly be challenged by judicial review in light of later changes in circumstances and the failure to seek a regulatory review.

1. Permission refused. The renewed application for permission to apply for judicial review failed. The court found no grounds to depart from the written reasons of His Honour Judge Worster.
2. The Agency was not obliged, when making or considering the income contribution order in 2011, to take account of changes in circumstances notified in 2013. The applicable regulations provided a procedure for review on grounds of hardship, but no application had been made under that procedure.
3. The capital contribution order was calculated by reference to the resources available at the date of the application for the representation order. Money frozen by the Revenue at that time was therefore capable of being taken into account in the capital assessment.
4. The later release and expenditure of the money did not establish a ground for judicial review of the original capital contribution order. The proper course was to seek a review of the order under the Criminal Defence Service (Contribution Orders) Regulations 2009. The correspondence relied upon did not amount to a proper application for such a review.
5. The court was not persuaded that regulation 26 of the Criminal Defence Service (Contribution Orders) Regulations 2009, concerning deprivation of relevant resources, supplied a reason to refuse permission. The court was not persuaded that the claimant had deprived himself of resources within the meaning of that provision.
6. The court considered that the challenge was probably out of time, although that issue had not been relied upon as the basis for refusing permission and no determination was made on extension of time.
7. The earlier costs order of £847 was reconsidered and reduced to £500. The court declined to reconsider it further.

This was a renewed application following refusal of permission on paper by His Honour Judge Worster on 6 November 2014. The High Court (Administrative Court) declined to grant permission and reduced the costs order made below from £847 to £500.