EB, R (on the application of) v Director of Legal Aid Casework

A decision on exceptional case funding is unlawful if the decision-maker applies the statutory tests to a materially misconceived factual basis. The decision-maker must assess the actual circumstances of the applicant and the proposed legal matter.

Where access to medical treatment may affect an applicant’s private life, Article 8 may be engaged even though refusal of funding or treatment would not necessarily constitute a breach. In deciding whether legal aid is required, the Gudanaviciene factors must be addressed: the importance of the issues, the procedural, legal and evidential complexity, and the applicant’s ability to act without legal assistance.

Post-decision evidence cannot rescue a fundamentally defective decision by supplying a new merits assessment. The decision was quashed and remitted for a fresh decision.

EB, a woman with severe anorexia nervosa, sought exceptional case funding under section 10 of the Legal Aid, Sentencing and Punishment of Offenders Act 2012 to obtain legal assistance with an application under the Misuse of Drugs Act 1971 and the Misuse of Drugs Regulations 2001. The application concerned medically supervised access to psilocybin following a clinical trial.

The Defendant refused funding. The decision treated the proposed application as one for personal, unsupervised drug use, assessed estimated costs at £180,000 rather than approximately £40,000, concluded that Article 8 was not engaged, failed adequately to apply R (Gudanaviciene) v Director of Legal Aid Casework and another [2014] EWCA Civ 1622, and misapplied the sufficient-benefit test.

The central issues were whether the decision was unlawful on the three grounds advanced and whether relief should nevertheless be refused under section 31(2A) of the Senior Courts Act 1981.

1. Disposition. The claim succeeded on all three grounds. The decision dated 11 February 2025 was quashed, and the Defendant was required to issue a fresh decision. Costs were awarded to the Claimant.
2. Public-law approach. The legality of the decision depends on its quality as a whole. An irrational or legally flawed decision is not saved because the decision-maker happened to address another legal framework correctly or reached the correct outcome by chance. The court therefore considered the defects in the decision without treating the grounds as cumulative prerequisites.
3. Article 8. The relevant question was whether the circumstances engaged Article 8, not whether refusal of legal aid or treatment would necessarily breach it. The decision-maker wrongly treated the application as concerning personal drug use rather than medically supervised treatment. That false premise prevented an effective assessment of Article 8 and meant that the Defendant failed to assess the risk of breach required by section 10(3)(b) of the Legal Aid, Sentencing and Punishment of Offenders Act 2012. The engagement of Article 8 is fact-sensitive: R (Balajigari) v Secretary of State for the Home Department [2019] 1 WLR 4647, at [86].
4. Legal-aid assessment. The Defendant failed to apply the guidance in R (Gudanaviciene) v Director of Legal Aid Casework and another [2014] EWCA Civ 1622; [2015] 1 WLR 2247. The decision-maker had to consider the importance of the issues, the complexity of the procedure and the applicant’s ability to act without legal assistance, having regard to her age and mental capacity. Complexity was considered, but the importance of the issues and EB’s personal ability were not meaningfully assessed.
5. Sufficient benefit. The Defendant applied the test to wholly different facts. The assumed cost of £180,000 was materially wrong, and the proposed access was medically supervised rather than unsupervised. The Defendant therefore failed to have regard to all the circumstances of the case and to the circumstances of the individual. That error was incurable.
6. Substantially different outcome. The “highly likely” test under section 31(2A) of the Senior Courts Act 1981 sets a high threshold. The court must remain cautious about assessing the merits of the public decision itself: R (Plan B Earth) v Secretary of State for Transport [2020] EWCA Civ 214; [2020] PTSR 1446. The Defendant’s post-decision witness evidence was an impermissible attempt to provide a second decision or rationalisation after the event, applying the principles in R (United Trade Action Group Ltd) v Transport for London [2021] EWCA Civ 1197; [2022] R.T.R. 2. The court could not conclude that the outcome would highly likely have been substantially different.

This was a first-instance judicial review. Permission was granted on all three grounds by Richard Clayton KC, sitting as a Deputy High Court Judge, on 13 October 2025. The judgment records no appeal or earlier merits decision.