Legal aid in mental health cases

Our thanks to Mental Health Law Online for drawing our attention to AMA v Greater Manchester West Mental Health NHS Foundation Trust and Others (Mental health : All) [2015] UKUT 36 (AAC). This was a case in which the Upper Tribunal gave some guidance on the respective roles of legal representatives and welfare representatives and the capacity of a patient to make such appointments. At the start of his decision, Mr Justice Charles, the President, said this:

3.     The Appellant attended the hearing and was represented by solicitors and counsel who acted pro bono because he had been refused funding by a decision of the Special Controls Review Panel of the Legal Aid Agency dated 7 October 2014 and sent on 14 October 2014 (six days before the hearing).  I am very grateful to them for so acting, as no doubt are AMA and his mother.  In my view, others are also likely to be grateful because, in agreement with the FtT judge and them, and in disagreement with the Legal Aid Agency decision maker, this appeal is one that raises issues on which it is appropriate for the Upper Tribunal to give guidance.  Understandably there is no prospect that either AMA or his mother could themselves advance the relevant legal arguments.

4.       It is troubling, and this is not the first occasion that I have come across this, that legal aid is refused on appeals to the Upper Tribunal where it and the FtT consider that guidance is appropriate and absent representation pro bono the parties to the appeal and the Upper Tribunal would not have the benefit of necessary representation and argument.  Given that one of the functions of the Upper Tribunal is to give guidance that can be applied by the FtT in cases where parties may well not be represented I invite the Legal Aid Agency to consider whether in such “guidance cases” it should factor in and so expressly deal with the view of the judge (of the FtT or the Upper Tribunal) giving permission to appeal that the case is a “guidance case”.

This is therefore one of a number of cases, across various areas of the law, where senior members of the judiciary have expressed concern about decisions made to refuse funding – see further examples here and here (family),  and here (welfare benefits).

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Filed under Civil, LASPO

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