Duncan Lewis (Solicitors) Ltd, R (On the Application Of) v The Lord Chancellor

Legal-aid providers must assess financial eligibility consistently with the statutory scheme and applicable guidance. “Satisfactory evidence” is evidence reasonably sufficient to establish the client’s income during the computation period. Evidence may be accepted even if it does not state the precise amount received during that period, where it is reasonable to treat it as confirming the client’s income. Where the guidance does not address the particular form of support, the provider must exercise judgment by applying the general standard. A reviewing decision-maker must address whether the evidence was reasonably sufficient. It is legally flawed to treat the absence of an exact, up-to-date figure as automatically decisive.

The claimant solicitor’s firm provided publicly funded immigration advice to a client supported by a local authority under section 17 of the Children Act 1989. The firm assessed the client as financially eligible and later submitted its claim for payment. The Secretary of State reduced the claim to nil because the contemporaneous local-authority letters did not state the precise amount of subsistence paid during the relevant computation period.

An independent adjudicator upheld that decision, and the Secretary of State adopted it. The judicial review concerned whether the adjudicator had applied the correct approach to “satisfactory evidence” under the legal-aid scheme and guidance.

1. The decision was quashed. The claimant had an obligation to establish the client’s eligibility, and the legal-aid authorities were entitled to require consistent assessments and proper protection of public funds.
2. Under paragraph 12 of Part 2E of the Funding Code guidance, satisfactory evidence means evidence reasonably sufficient to establish income during the computation period. Evidence which does not refer directly to that period may still be accepted where it is reasonable to treat it as confirming the income during that period.
3. The guidance did not specifically address subsistence provided under section 17 of the Children Act 1989. Its table dealt with state benefits and NASS support, but neither category provided a direct answer for this form of local-authority support. The gap required the provider to exercise judgment by applying the general standard in paragraph 12.
4. The letters showed that the client was receiving continuing section 17 support. Although the later letters did not repeat the amount, they did not indicate that the support had changed. The known level of such support also made it clear that the client could not approach the financial eligibility threshold, even allowing for the temporary child-benefit calculation error.
5. The adjudicator asked the wrong question. He treated the failure of the local authority’s letters to state the precise current amount as conclusive of non-compliance, without deciding whether the evidence was reasonably sufficient under paragraph 12.2. That error was material, notwithstanding that he had correctly identified an error in the figures.
6. The decision was therefore quashed and remitted to be remade. The claimant was awarded costs, assessed in the sum of approximately £28,000.

Not an appeal. The judgment determined a judicial review claim against the Secretary of State’s adoption of the independent adjudicator’s decision.