Bhatia Best LTD v Lord Chancellor

For civil legal aid purposes, an appeal under section 204 of the Housing Act 1996 is not “judicial review” merely because the county court may apply principles resembling judicial review. Paragraph 19(10) of Part 1 of Schedule 1 to LASPO requires an enactment to require the court to apply those principles. Section 204, which permits an appeal on any point of law, contains no such requirement. The express wording of section 204A(4), requiring judicial review principles to be applied, demonstrates the statutory distinction. Guidance, merits regulations and procedural rules cannot enlarge the statutory scope of legal aid.

Bhatia Best Limited, a solicitors’ firm, referred a contractual dispute with the Lord Chancellor to the High Court after the Legal Aid Agency refused to treat appeals under section 204 of the Housing Act 1996 as falling within the post-LASPO Public Law Category. Before 1 April 2013, the firm had undertaken such work under its public-law contract.

The central issue was whether a section 204 appeal came within the definition of “judicial review” in paragraph 19(10) of Part 1 of Schedule 1 to LASPO, because the county court was required by an enactment to decide the appeal by applying judicial review principles.

1. The claim failed. Section 204 appeals did not fall within the Public Law Category under the post-LASPO civil legal aid scheme.
2. Paragraph 19(10) of Part 1 of Schedule 1 to LASPO required an enactment to require the court to apply judicial review principles. Section 204(1) instead provided for an appeal to the county court on any point of law. The statutory language did not contain the necessary requirement.
3. The contrast with section 204A(4) was decisive. That provision expressly stated that, in determining an appeal, the court was to apply the principles applied by the High Court on judicial review. The different wording used in sections 204 and 204A had to be given different meanings. Rewriting section 204 to add an express requirement was impermissible.
4. Nipa Begum v Tower Hamlets [2000] 1 WLR 306 and Runa Begum v Tower Hamlets London Borough Council [2003] 2 AC 430 established, or described, the broad jurisdiction available on a section 204 appeal. They did not establish that the Housing Act 1996 required the county court to apply judicial review principles for the purposes of paragraph 19(10).
5. The fact that appeals on points of law may substantially overlap with judicial review did not create a statutory requirement to apply judicial review principles. The Merits Regulations, Guidance and CPR provisions governed other aspects of the scheme and could not determine the meaning of paragraph 19(10).

The judgment records a contractual referral to the High Court following the Legal Aid Agency’s review decision. No earlier judicial decision in the same proceedings is stated.