The LAA has published an updated Point of Principle Manual. It includes a new PoP, CLA59, which applies to both civil and criminal work. The PoP says:
Where a provider exercises discretion as provided for under the relevant Financial Regulations an assessor may only overturn a determination that an individual qualifies for services where the provider’s determination was manifestly unreasonable.
This point of principle applies to any aspect of the determination which requires a provider to exercise an element of discretion. It does not override any mandatory regulatory or contractual duty relating to the assessment of means. Any determination that an individual is financially eligible for legal services must comply with all relevant regulatory and contractual provisions. In complying with these provisions providers must have regard to the Lord Chancellor’s Guidance issued in relation to determining financial eligibility.
This is a useful re-statement of the principle that the role of the assessor is not to substitute their own judgement for that of the lawyer doing the work. The lawyer’s exercise of a discretion within the scheme should only be overturned if, based on what was known at the time, it was manifestly unreasonable.
PoPs don’t apply to the 2015 civil and 2017 criminal contracts. However, this is a re-statement of a general principle (see also our post on equivalent case law here, and see CLA56, which applies the same principle to the more limited issue of exercise of delegated functions). As such, the LAA should be taking the same approach across all work.
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