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Legal Aid Board: Advice

Volume 593: debated on Thursday 3 September 1998

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asked Her Majesty's Government:Whether the Legal Aid Board's practice of relying on the advice of the applicant's legal adviser in determining whether or not to grant civil legal aid properly discharges the board's legal duties in accordance with Section 15(2) of the Legal Aid Act 1988. [HL 3197]

Yes. The purpose of the merits test in Section 15(2) is not to adjudicate on the issues, but to decide whether the applicant's case contains an issue of fact or law that is reasonable to submit to a court for decision. The Legal Aid Board's practice is to obtain the opinion of the applicant's legal representative about the case, and the representative has an obligation to inform the board of any difficulties there may be with it, for instance with obtaining evidence.The board does not, however, rely exclusively on this opinion. It assesses the merits of the application against a range of criteria, which are set out in Section 7 of the Notes for Guidance in the

Legal Aid Handbook (Sweet and Maxwell, ISBN 0–421–60810–2). An assessment is made both of the legal merits of the case (the prospects of success for the claim) and its reasonableness, which is a wide and general test which can take into account all the factors which would influence a private client who was considering taking proceedings. It will include an assessment of the likely cost of the claim against the likely benefit. Benefit need not be exclusively monetary; it will include considerations of the importance of the case to the client. Each area office employs lawyers, who will assess the more difficult cases.

In some circumstances, only a limited legal aid certificate will be granted, in order to establish more clearly the merits of the case. In a medical negligence case, for example, this may be to fund a medical report, and an opinion from counsel. The board may also, in exceptional circumstances, where a case is very complex and potentially very expensive, seek further information itself before making its decision on the merits, either in the form of commissioning its own legal or expert opinion on the case, or through inviting representations from the proposed opponent or third parties.

It is always open to the other side in a case to make representations to the board if it believes that the applicant's case lacks the merits required for legal aid to be granted. But the board alone remains responsible for the decision whether to grant legal aid, and the determining factor is ultimately the judgment of its own experienced staff.

asked Her Majesty's Government:Whether the Legal Aid Board's practice of relying on the advice of the applicant's legal adviser in determining whether or not to grant legal aid leads to unrealistically optimistic advice being given to the Board, particularly in medical negligence litigation. [HL 3198]

The Government believe that most legal advisers give fair and objective opinions on the merits of cases to enable the Legal Aid Board to decide whether to grant legal aid in accordance with the existing statutory criteria. The Bar Council has laid down guidelines that Counsel must follow when providing their opinions. The Government intend however, when the legislative opportunity arises, to strengthen the merits test, so that applicants' lawyers commit themselves in their assessment of the case to specific prospects of success, expressed as percentages, on the information available to them. This will be subject to an over-riding principle that the Legal Aid Board should only be recommended to support litigation which individual litigants, properly advised, and not eligible for legal aid, would support out of their own resources.Some cases, assessed initially as having particular prospects of success, lose at trial. This does not necessarily mean that the initial assessment of their chances was unduly optimistic. Nonetheless, the Government are concerned that applicants' legal advisers do sometimes give unrealistic advice. My plans to tighten the merits test and to monitor providers performances, as part of the legal aid reforms, will reduce this. In addition, I also plan to restrict representation in medical negligence cases to a panel of quality-assured providers.

asked Her Majesty's Government:Whether the Legal Aid Board's practice of relying on the advice of the applicant's legal adviser (who may have a direct financial interest in advancing the case) in determining whether or not to grant civil legal aid infringes a fundamental principle of natural justice, namely the rule against bias. [HL3199]

No. The role of the Legal Aid Board is not to adjudicate on the applicant's case, but to decide whether the applicant's case contains an issue of fact or law that is reasonable to submit to a court for decision.

The Board does not, however, rely exclusively on the advice of the applicant's legal representative. It assesses the merits of the application against a range of criteria, which are set out in Section 7 of the Notes for Guidance in the Legal Aid Handbook (Sweet and Maxwell, ISBN 0–421–60810–2). An assessment is made both of the legal merits of the case (the prospects of success for the claim) and its reasonableness, which is a wide and general test which can take into account all the factors which would influence a private client considering taking proceedings. It will include an assessment of the likely cost of the claim against the likely benefit. Benefit need not be exclusively monetary; it will include considerations of the importance of the case to the client. Each area office employs lawyers, who will assess the more difficult cases.

In some circumstances, only a limited legal aid certificate will be granted, in order to establish more clearly the merits of the case. In a medical negligence case, for example, this may be to fund a medical report, and an opinion from counsel. The board may also, in exceptional circumstances, where a case is very complex and potentially very expensive, seek further information itself before making its decision on the merits, either in the form of commissioning its own legal or expert opinion on the case, or through inviting representations from the proposed opponent or third parties.

It is always open to the other side in a case to make representations to the board if it believes that the applicant's case lacks the merits required for legal aid to be granted. But the board alone remains responsible for the decision whether to grant legal aid, and the determining factor is ultimately the judgment of its own experienced staff.