Law Report: Dual applications for legal aid were wrongly assessed: Regina v Legal Aid Assessment Officer, ex parte Crocker - Queen's Bench Division (Mr Justice Auld), 22 July 1993

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The circumstances to which the legal aid assessment office should have regard, when considering whether to exercise its discretion to disregard wholly or partially the capital of an applicant applying for legal aid for particular proceedings, include the financial effect of other proceedings on the applicant's personal financial position.

Mr Justice Auld quashed the assessment officer's decisions that the applicant's capital should be taken into account in full in assessing each of her two applications for legal aid.

The applicant, a single woman aged 58, was disabled and in receipt of invalidity pension. Her only substantial asset was a pounds 9,000 investment income bond realisable on three months' notice. As a result of default on loans by the owner of the property of which she had been a tenant since 1936, two actions for possession had been brought against her. Although the upper capital limit for eligibility for legal aid was pounds 6,750, she made legal aid applications for each possession action, requesting that her capital should be disregarded under paragraph 15 of Schedule 3 to the Civil Legal Aid (Assessment of Resources) Regulations 1989 (SI no 338).

The assesssment office assessed her capital in relation to each application independently of the other and declined to disregard any of the capital. The Legal Aid Board subsequently granted legal aid in each case subject to a total contribution of pounds 6,048.

Jan Luba (Hammersmith and Fulham Private Tenants Rights Project) for the applicant; Mark Shaw (Department of Social Security) for the legal aid assessment officer.

MR JUSTICE AULD said that it was important to distinguish between the function of the Legal Aid Board and the legal aid assessment office. The former decided in principle whether an applicant would be entitled to legal aid on the merits of the proceedings in respect of which the application was made. The latter was concerned only with the financial eligibility of the applicant to legal aid in respect of those proceedings. Paragraph 15 expressly conferred a discretion on the asssessment office whether to disregard all or some of the applicant's capital, 'having regard to all the circumstances of the case'.

The word 'case' in this context, which was the context of an applicant's financial eligibility for legal aid, was not the particular proceedings in respect of which the application for legal aid was made, but the application to the assessment office for consideration of financial eligibility for legal aid in respect of those proceedings.

The circumstances of the case were personal to the applicant, in particular his or her means and the present and likely future demands on them. A relevant circumstance in relation to an applicant's available capital might be that it was one of two or more applications made, in respect of different proceedings, whether associated or not.

The assessment office was wrong in law in deciding that it was not entitled to consider, in relation to each of the applicant's applications for legal aid, as part of 'the circumstances of the case' going to the exercise of its discretion to disregard all or some of her capital, the fact that she had made or was making two legal aid applications.

The fact of the two applications and the effect of them on the applicant's financial position was a highly relevant circumstance of the case, to which the assessment office should have had regard in the exercise of its discretion under paragraph 15.

The assessment office's decision in each case was quashed and remitted for reconsideration.