I meant to post about this one a month ago but got sidetracked. A case for any civil legal aid people to note.
Funding Certificates are means-tested. Funding issued by practioners under devloved powers can be and is yanked by the Legal Services Commission if they later calculate the client as outside the eligible range. Unsurprisingly, this gives rise to quite a few disputes.
Rent is taken into account in the means test. Relatively recently, the LSC, in its wisdom, decided that the rent figure was rent actually paid, not rent payable. This produced the glorious result of people facing possession proceedings for rent arrears not getting funding to defend the claim because, err, they hadn’t been paying the rent. It also means that the LSC was concluding that the client would continue to not pay the rent so that their disposable income would remain over the eligibility threshold. We had a number of these decisions, which were under appeal at the LSC, now reversed – too late in a couple of cases.
Southwark Law Centre judicially reviewed the LSC on just this point and won, R(Southwark Law Centre) v Legal Services Commission [2007] EWHC 1715 (Admin). The judgment points out that the funding regulations refer to ‘rent payable’, not rent actually paid and that the LSC’s wriggling about on this point wasn’t good enough.
The judgment also, albeit obiter, suggests that a tolerated tresspasser can’t be considered as paying ‘rent’, so couldn’t be assessed on rent payable, but that this situation would fall under Regulation 24(6) Community Legal Service (Financial) Regulations 2000 as ‘cost of living accommodation’ for the mesne profits.
Thanks, Southwark Law Centre. That issue was a particularly egregious bit of penny pinching by the LSC, which always looked like a breach of the Regulations.