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Council succeeds in having legal aid grant quashed

5 January 2018

A grant of legal aid to appeal against the dismissal of a petition for judicial review has been quashed because the applicant failed to give fair notice of his case to the authority whose decision was challenged.

Lord Woolman in the Court of Session granted a petition by Glasgow City Council against the grant by the Scottish Legal Aid Board of assistance to a man, PQ, who sought to challenge a decision by the council relating to the care of his elderly and infirm mother.

Acting under power of attorney, PQ disagreed with the council's decision, following an assessment of needs, that it would be appropriate to transfer his mother to a residential home rather than continue to fund daily care at her home. After his petition was dismissed in the Outer House he sought legal aid to reclaim. The statutory statement from his solicitors simply said that SLAB had "erred in law in refusing judicial review".

On receipt of this, the council sought further information on the basis for the appeal and represented that it was unreasonable to make further public funds available to PQ. SLAB initially refused to make legal aid available, but after PQ requested a review, reversed its decision. It told the council that it could not make further information available without PQ's consent, which was refused.

PQ's subsequently lodged grounds of appeal stated that the social worker who carried out the review was not properly qualified (in fact she was an experienced social worker who was also qualified as a nurse), as well as challenging the calculation of benefit payments due. The council claimed that it should have been able to make detailed representations to SLAB on the former point.

It contended that SLAB infringed the principles of natural justice, procedural propriety, lawfulness, reasonableness and legitimate expectation. SLAB relied on Fife Regional Council v Scottish Legal Aid Board 1994 SLT 96 and submitted that it was concerned to avoid its procedures becoming more legalistic, in particular in having to allocate more of its limited resources to administration, adjudicating on any disputed issues of fact and law and becoming entangled in “satellite litigation”.

Lord Woolman said PQ had not complied with SLAB's guidance or given fair notice of his case to the council. "To do so would have presented no difficulty. He had to inform the Board about the proposed grounds of appeal. Otherwise it could not have decided the application. He should have given the same information to GCC. That would not have involved any breach of confidentiality. If the relevant information was contained in a legal opinion that also contained views about the prospects, PQ could have excerpted the relevant parts or redacted the confidential parts."

He continued: "I wish to emphasise that fairness also applies at the review stage... Applicants who provide no detail of their case in the statutory statement and who also decline to consent to the Board disclosing the relevant information to the opponent, subvert the scheme. They make the application procedure opaque, instead of transparent. They prevent opponents from active participation. That is unfair.

While he accepted that SLAB was bound by the duty of confidentiality in s 34(1) of the Legal Aid (Scotland) Act 1986, it "should have told PQ that it was not prepared to consider his application until he provided sufficient notice of the case to GCC". 

The Fife case could be distinguished as the council did not know all the issues in controversy; and in any event was "no longer good law. It is out of kilter with the trend toward greater transparency". SLAB's other concerns were "more appearent than real".

He granted the petition and reduced the decision to grant legal aid.

Click here to view the opinion.

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