News of a couple of recent cases where the scope of legal aid has been an issue:
Firstly, some welcome news via the Court of Protection Handbook blog (another site supporting a LAG book, and invaluable for practitioners in that field). It is a report from Bindmans confirming that the LAA has conceded that a claim for damages under the Human Rights Act made in the Court of Protection is in scope under para 22 of Schedule 1 of LASPO. More here.
Secondly, another in the list of cases where the family courts have identified loopholes in the funding arrangements for care cases. In JC (Discharge of Care Order : Legal Aid) , Re [2015] EWFC B39, a father was refused legal aid to be represented on an application by the local authority to withdraw discharge of a care order. While such matters are in scope, they are not covered by the non-means non-merits provisions, and the father didn’t qualify on means. HHJ Hammerton said:
In terms of the provision of legal aid it is impossible to rationalise the distinction between defending an application for a care order and defending an application for the withdrawal of permission to discharge a care order, when both applications are made by the local authority. The outcome being sought by the local authority is the same, namely the removal of the child from his parent. However the application made within original care proceedings will attract non-means tested public funding whereas the application to withdraw a discharge of a care order will not.
The lack of legal representation inevitably causes an imbalance in the effective presentation of the cases advanced by the parties. When, as here, the subject matter is grave and emotive, the absence of representation is particularly inappropriate and unfair.
Legal Aid Handbook 