G.R., R (on the application of) v Director of Legal Aid Casework & Anor

Regulation 31(b) of the Civil Legal Aid (Financial Resources & Payment for Services) Regulations 2013 gives the Director a discretion to value a capital resource in an equitable manner. That discretion is not excluded merely because regulation 37 makes specific provision for valuing interests in land. Regulation 37 ordinarily requires the market value achievable on sale, rather than the amount that could be raised by sale or borrowing within the litigation timetable. But regulation 31(b) remains available where applying that market value would leave an applicant unable realistically to fund representation. The discretion must be exercised compatibly with Articles 6 and 8, while maintaining the statutory aim of targeting scarce legal-aid resources on those most in need.

GR sought civil legal aid for family proceedings concerning the care of her children and jointly owned property following alleged domestic abuse. She passed the merits test and, through receipt of Universal Credit, the income elements of the means test. The Legal Aid Agency nevertheless refused funding because her assessed disposable capital, based principally on her interest in the family home, exceeded £8,000.

She challenged the Director’s construction of regulations 31 and 37 of the Civil Legal Aid (Financial Resources & Payment for Services) Regulations 2013, and relied on Articles 6 and 8 of the Convention. The central issues were whether regulation 37 exclusively governed land valuation, whether its reference to the amount for which an interest could be sold meant a practical litigation-funding value, and whether the refusal breached Convention rights.

1. Construction. The claim was partly successful. Regulation 37(1) concerns the market value that might be achieved on a sale. It does not require the Director to ask what could be obtained by sale or borrowing within the time needed to fund legal representation. That proposed gloss would add an unwarranted timing qualification and a separate borrowing-based valuation method.
2. Regulation 31 is an overarching provision applying to capital resources other than money. Regulation 37 makes specific provision for interests in land, including the treatment of secured debt, but does not remove the discretion in regulation 31(b). The Director therefore has power to value an interest in land in such other manner as appears equitable.
3. The construction had to reflect the statutory context and the mischief addressed by the reforms. The scheme seeks to honour the state’s obligations to secure fair and effective access to justice under Articles 6 and 8, while controlling expenditure and excluding applicants able to fund representation from their income or capital.
4. A rigid market-value approach, mitigated only by fixed disregards, could deny effective access to justice to a small number of low-income applicants whose apparent property wealth was not realistically accessible. The possibility of self-representation, private funding, deferred or conditional fees, pro bono assistance or sale did not make a Convention breach inevitable, but it reinforced the need for a lawful discretion.
5. The refusal was quashed in substance and GR’s application was remitted for reconsideration, including whether regulation 31(b) should be exercised. The court declined to declare that the Director had already breached Articles 6 and 8. The discretion was not necessarily required to be exercised in GR’s favour.

This was a first-instance judicial review. Lewis J granted permission on 15 April 2020. The Administrative Court remitted the legal-aid application for reconsideration and declined the further Convention-rights declaration.