C (Lay Advocates) (No.2) Secretary State For Justice v A Local Authority & Ors

Payment for a lay advocate depends on where the assistance is provided and what function it performs. HMCTS is responsible for funding a lay advocate for a party at a court hearing in appropriate circumstances. Where civil legal aid funds the proceedings, the Legal Aid Agency is responsible for out-of-court assistance with communication between the client and legal representative, provided the expenditure is a justifiable and reasonable disbursement in the course of the representation. A lay advocate supports a person with intellectual impairment or learning difficulties to understand information and participate effectively. The role is distinct from legal services, a McKenzie Friend and an intermediary.

The Secretary of State for Justice applied to vary an order made on 13 December 2019 in public law children proceedings. The earlier order had provided for HMCTS to fund lay advocates for two parents with intellectual impairments, both at court and for out-of-court work with their solicitors. The application followed disagreement between HMCTS and the Legal Aid Agency about responsibility for funding.

During the hearing, the parties and public bodies agreed the division of responsibility and the costs incurred. The central issue was whether the previous order should be varied to reflect that agreement.

1. The court varied its earlier judgment and order by consent. HMCTS was to fund a lay advocate for a party at court hearings in appropriate circumstances.
2. Where the proceedings benefit from civil legal aid, the Legal Aid Agency was responsible for funding a lay advocate assisting communication between the client and solicitor or counsel out of court, subject to being satisfied that the expenditure was a justifiable and reasonable disbursement in the course of the legal representation.
3. A lay advocate does not provide legal services, is not a McKenzie Friend and is not an intermediary, although a person may be qualified to perform more than one of those roles. The relevant function is to assist a party with intellectual impairment or learning difficulties to process and comprehend information, respond to it and participate effectively in proceedings, both in court and out of court.
4. The judge maintained his view that lay advocates were essential for the two parents in the circumstances of the case to protect their rights under Article 6. HMCTS agreed to pay the costs incurred to date, and the Legal Aid Agency agreed to consider any further applications under the stated test.
5. The parties, HMCTS and the Legal Aid Agency were permitted to publicise the terms of the order pending publication of the judgment.

First-instance application to vary an order previously made in the same proceedings. The application was resolved by an agreed consent order, which the court approved and incorporated by varying the earlier order.