Christopher Grayling’s well-publicised plans for cutting public funding for judicial review claims are likely to affect community care practitioners on a number of fronts. First, and most importantly, it is proposed that public funding will not be available for unsuccessful judicial review permission applications, even where a substantive benefit is achieved from the issue of proceedings. Public funding would still be available for an initial consideration of the merits of a case and for pre-action work. That will create an incentive to front-load cost at the pre-action stage. On the other hand, if the proposals go ahead, no doubt many meritorious cases will fall through the net as advisers will not want to take the risk of failing at the permission stage. This reform will also greatly alter the attractiveness to claimants of the rolled-up hearing procedure.
Second, there is a proposal to impose a residency test such that applicants for public funding will need to be lawfully resident in the UK, and to have been lawfully resident in the UK for any continuous twelve-month period. This will exclude any applicant with no recourse to public funds from applying for legal aid. The difficulties that may be caused by this change should be self-evident. An individual may have been wrongly (and unlawfully) determined by a public body to have no recourse to public funds, yet that determination also acts as a barrier to being able to obtain public funding to challenge that very issue.
Third, the proposals will remove the “borderline” category of cases from scope. Only cases assessed as having a greater than 50 percent chance of success will, under the proposals, ever be granted funding.
The proposals will have a significant impact on small specialist firms who make a valuable contribution to support for vulnerable service users. They are understandably causing uproar in the legal community. The Bar Council and the Law Society have both put in robust responses to the government’s consultation on the proposals; 13,000 other respondents also replied; and 90 QCs, who represent both claimants and public bodies, wrote a letter of protest in the Daily Telegraph.