HE, R (on the application of) v The Lord Chancellor

At the permission stage, a child may arguably be a victim of discrimination where the refusal of legal aid has an indirect financial impact on the child through the child’s family, even though the legal aid would be paid to a parent. The claimant must also show that the refusal is arguably manifestly without reasonable foundation or irrational. A pending review does not necessarily provide an adequate alternative remedy for a decision already taken and arguably causing financial impact. The court need only determine arguability at this stage.

The claimant, an infant, challenged the refusal of legal aid to his father. The father wished to bring judicial review proceedings concerning differences between infected blood support payments in Wales and England. Legal aid was refused because a lump sum received under the Welsh scheme counted towards the capital means test.

The claim alleged discrimination under article 14 read with article 8 and/or A1P1 of the ECHR, and irrationality. Permission had been refused on the papers by Upper Tribunal Judge Grubb, sitting as a High Court judge. The claimant renewed the application before the Administrative Court. The central issues were whether he was arguably a victim with standing, whether the refusal was arguably without reasonable foundation or irrational, and whether a pending governmental review provided an adequate alternative remedy.

1. Permission granted. Both grounds were arguable and permission was granted for the substantive judicial review claim.
2. For permission purposes, the claimant had to show an arguable case that the refusal of legal aid was manifestly without reasonable foundation, that he was a victim of the alleged Convention breach, and that he had standing. Failure on any one of those matters would have required refusal of permission.
3. The court accepted that it was arguable that an indirect financial impact on a dependent child was sufficient to make the child a victim of discrimination. The observations in R (SG) v Secretary of State for Work and Pensions and R (DA) v Secretary of State for Work and Pensions supported that conclusion. This remained arguable notwithstanding contrary observations in an ECtHR decision.
4. It was also arguable that the refusal was manifestly without reasonable foundation and/or irrational. The claimant had advanced arguable objections concerning the justification for treating infected blood payments differently from payments under other schemes and concerning the distinction between eligibility for benefits and eligibility for legal aid.
5. The defendant’s ongoing review did not necessarily provide an adequate remedy. It was arguable that the decision already taken was already causing financial impact, and the review was not bound to resolve that issue.

Directions were to be given for the substantive claim in an accompanying order.

The judgment itself was a renewed permission decision at first instance. Upper Tribunal Judge Grubb, sitting as a High Court judge, had refused permission on the papers. The claimant renewed the application before the Administrative Court, which granted permission.