Andrzej Szczurkowski, R (on the application of) v Director of Legal Aid Casework [2026] EWHC 1075 (Admin)

[2026] EWHC 1075 (Admin)

Case No AC-2025-LON-000017

IN THE HIGH COURT OF JUSTICE

KING'S BENCH DIVISION

ADMINISTRATIVE COURT

Venue Royal Courts of Justice, Strand, London, WC2A 2LL

Date 07/05/2026

Before

Richard Wright KC

Between

ANDRZEJ SZCZURKOWSKI)Claimant

DIRECTOR OF LEGAL AID CASEWORKDefendant

Admas Habteslasie (instructed by ATLEU) for Claimant

Malcolm Birdling and Richard Howell (instructed by Government Legal Department) for Defendant

Hearing Hearing dates: 11 th and 12 th March 2026

APPROVED JUDGMENT

This judgment was handed down remotely on 7 May 2026 at 10:30am by circulation to the parties or their representatives by email and released to the National Archives.

Richard Wright KC sitting as a Deputy Judge of the High Court :

Introduction

[1]The Claimant is a victim of human trafficking whose claim for compensation was refused by the Criminal Injuries Compensation Authority (“CICA”) and who seeks to appeal that decision to the First-tier Tribunal (“FTT”) under Section 5(1) of the Criminal Injuries Compensation Act 1995.

[2]The Defendant is the Director of Legal Aid Casework to whom the Claimant made an application for Civil Exceptional Case Funding (“ECF”) seeking the grant of full representation in his appeal. The Defendant refused his application.

[3]This Claim for Judicial Review arises from the outcome of the Defendant’s review of that decision, which resulted in her maintaining the refusal of full representation but granting legal help to the Claimant. Save for Ground Five the Claimant does not challenge the Defendant’s decision to refuse him full representation, but says the Defendant acted unlawfully in failing to either consider, or to grant him, investigative representation.

[4]The determination of the Claim has required consideration of the statutory scheme for the grant of ECF and the obligations that scheme imposes on the Director when determining such an application.

[5]Permission was granted on the papers by Lang J on 19th September 2025.

Judgment Overview

[6]This Judgment proceeds as follows. The relevant facts are summarised at paragraphs [8] to [33], the Grounds at [34] to [35], and the relevant statutory framework and legal principles engaged at [36] to [65]. From [66] to [124] the submissions of the parties are summarised, and the decision then follows at [125] to [197].

[7]Both the summary of the submissions made, and the decision, follow the five numbered Grounds argued in the Claim. Ground One concerns whether the Director was under any obligation, when refusing full representation, to consider or grant investigative representation where no such application had been made. I conclude that no such obligation arose. Ground Two challenges the decision on grounds of irrationality; I conclude that the grant of legal help was a lawful and rational exercise of discretion. In any event, relief would be refused pursuant to section 31(2A) of the Senior Courts Act 1981. Ground Three (Delay) is academic and not made out on the facts. Ground Four falls away. Permission to advance Ground Five is refused.

The Facts

[8]The Modern Slavery Human Trafficking Unit of the National Crime Agency made a conclusive grounds determination that Mr Szczurkowski was a victim of modern slavery on 22nd April 2019.

[9]He applied for compensation from the CICA on 14th August 2020. The application form, under the heading ‘Incident Details’, was completed on the basis that he had been injured as the result of an assault. The brief details of the incident (as the form required) were stated as:

“AS is an identified victim of modern slavery (Conclusive Grounds decision issued on 22/04/2019). He lived in a garden shed (slept on a plastic beach chair and later cellar belonging to a family who required him to do gardening jobs and work inside the house as well as work in their wedding planning business for no or very little pay. No facilities in the shed: toilet, kitchen, shower etc, he was given out of date food. Family insisted that he was on the premises all the time and available to work.”

[10]The section of the form requiring details of his injuries was completed with the following information: “Aggravation of pre-existing symptoms of depression, claustrophobia, symptoms of PTSD, difficulty sleeping began when lived with the family who exploited him, respiratory issues/lung infection. Instructed by traffickers to climb up a ladder, had a fal [sic]”.

[11]His application for compensation was refused by the CICA on 21st September 2022 on the basis that he had not been injured as a result of a crime of violence. The explanation for the decision was in these terms:

“Under the terms of the Scheme an award can only be made where an applicant has been the subject of a crime of violence. The Scheme tells us that a crime of violence can be a physical or sexual assault, or a threat of violence which places them in fear of immediate physical harm. The evidence we have, however, makes no mention of any physical or sexual assaults. Nor is there any mention that you were subjected to threats of violence which placed you in fear of physical harm. You have told us in your application form that you were the victim of modem [sic] slavery and exploitation, and that you suffered psychological and respiratory problems as a result. Such exploitation in itself is not a crime of violence, however, and in the absence of supporting evidence that you were injured in a crime of violence I am unable to make an award.”

[12]On 9th January 2023 the Claimant submitted a review request to the CICA. The review request, at Paragraph 2.9, provided further information about the incident in which the Claimant fell from a ladder and was injured:

“On one occasion when Mr Szczurkowski was doing work for the family, he suffered a fall down a ladder and went through a glass window. He suffered a deep laceration which required 23 stitches on his right knee and right side. He received medical treatment for this fall, as confirmed in his GP record and hospital records. Relevant extracts of these records are appended.”

[13]The review request argued that the Claimant had been the victim of a crime of violence. It advanced a number of distinct arguments in support of that contention. The important arguments relevant to this Claim were that:(i) The injuries sustained in the fall from a ladder were the result of an act or omission of a violent nature that caused physical injury to the Claimant (Paragraph 2(1)(b) of Annex B to the Criminal Injuries Compensation Scheme 2012).

(ii) He had “lived in a constant state of victimisation and servitude, which would understandably put ‘a person of reasonable firmness’ in a state of fear of violence” (Paragraph 2(1)(c) of Annex B to the Criminal Injuries Compensation Scheme 2012).

[14]In terms of the ladder incident the review request contained these submissions to the CICA:

“In relation to Mr Szczurkowski's fall from a ladder, resulting in a laceration requiring 23 stitches, we submit that this injury was a result of acts and omissions of a violent nature, which were carried out intentionally or recklessly by the alleged traffickers. It is established in English criminal law that a person acts recklessly with respect to (i) a circumstance when he is aware of a risk that it exists or will exist; and (ii) a result when he is aware of a risk that it will occur, and it is, in the circumstances known to him, unreasonable to take that risk (R v G and another [2003] UKHL 50). As for limb (i) above of that definition, the alleged traffickers were acutely aware that a risk of injury existed. They subjected Mr Szczurkowski to threatening and coercive behaviour, and as part of their exploitation, made Mr Szczurkowski live and work in inhumane and dangerous conditions. In relation to the fall, they did not provide him with health and safety equipment or adequate training. These acts and omissions culminated in a hazardous environment. It follows that when they demanded that Mr Szczurkowski carry out maintenance work for them, they had created circumstances where they were aware that a risk to Mr Szczurkowski's health and safety existed. They were aware that he could fall and injure himself as a result of their insistence that Mr Szczurkowski would do exactly what they commanded him to do, whenever they commanded him to do it. In relation to limb (ii) of the test described in paragraph 4.3, we would take the view that the risk of a fall must have been apparent to the alleged traffickers, given the circumstances. Considering the lack of training and health and safety, it was not reasonable to subject Mr Szczurkowski to this heightened risk of injury when carrying out building works. Therefore, in reaching the initial determination, CICA did not afford enough weight to the acts and omissions of the alleged traffickers. These acts and omissions resulted in a serious injury to Mr Szczurkowski, which would not have happened but for the alleged trafficker’s recklessness as to his health and safety.”

[15]The review request was refused on 19th January 2023. The written reasons given for rejecting the request included these paragraphs:

“Having reviewed the police evidence and the information that you have forwarded there is no evidence that any charges in relation to the period of abuse claimed resulted in any criminal convictions in respect of crimes of violence. There is also no evidence that you have received any injuries as a direct result of a physical attack. There are no details of physical assaults. I do not consider the incident involving falling off a ladder to be a crime of violence. This appears to have been an accident and there is nothing to suggest there was an act or omission of a violent nature with an intent to cause a physical injury. Paragraph four of the scheme states we may pay compensation only if an injury was caused directly by a crime of violence. This would include a threat against a person that was sufficient to cause an immediate fear of violence even if there was no physical attack. Immediate should be taken in the strictest sense in that the offender making the threat should be within the immediate time and vicinity of an applicant. As there is no information to suggest this was the case I regret I am unable to consider any award in this case.”

[16]The Claimant then instructed the Anti Trafficking and Labour Exploitation Unit (“ATLEU”) to bring an appeal to the FTT against the CICA decision. To date no Notice of Appeal has been filed pending resolution of the funding issues to which this Claim for Judicial Review relates.

[17]On 14th July 2023 the Claimant made an application to the Defendant for ECF to assist him in bringing his appeal to the FTT pursuant to Section 5(1) of the Criminal Injuries Compensation Act 1995.

[18]The application records that the form of service applied for was full representation. The reason for the application was given as “The applicant needs to instruct counsel to draft grounds of appeal. In line with merits regulation 13 of the Civil Legal Aid (Merits Criteria) Regulations 2013, legal help is not appropriate for instructing an advocate in proceedings”.

[19]The statement of case that accompanied the application made it clear that the Claimant was not asserting that he had been the victim of a physical attack. Rather he was advancing a claim to the CICA on the basis of paragraphs 2(1)(b) and/or (c) of Annex B on the basis that, per Paragraph 2(1)(b), the ladder incident was a crime of violence because as stated at paragraph 36 of the statement of case:

“…he climbed the ladder and suffered injury because of the fear of violence if he did not accede to his traffickers demands. He was therefore subject to a violent act in being compelled to climb the ladder without safety equipment and in circumstances where he could not object. He suffered physical injury as a result of this compulsion.”

[20]And also that per Paragraph 2(1)(c) as set out at Paragraph 38 of the statement of case:

“He was coercively controlled by violent human traffickers who subjected him to forced and compulsory labour, imprisoned him in unsanitary living conditions, deliberately starved him, and ordered him to climb an unsafe ladder and drive a car under the influence of alcohol. The Applicant accepted these intolerable conditions and demands because he feared the traffickers would subject him to further punishment if he objected.”

[21]The Defendant refused the ECF application on 13th September 2023. The decision letter gave reasons for the refusal which included:

“We note that the order was for your client to climb the ladder in question to clean the gutter. The tone of the instruction to your client led him to believe that if he did not comply, he would be punished. However, the contents of your supporting documents indicate that your client acceded the trafficker's request because if he failed to do so, he will lose his current accommodation and become homeless. There is no suggestion your client feared unlawful and immediate violence from the perpetrator if he failed to comply with the request of that the tone of the order caused him to apprehend a fear of immediate violence. The act mentioned is therefore insufficient to amount to an act of violence in line with the Paragraph 2 Annex B of CICS. Regulation 43 of the merits regs is not satisfied in this instance and your application is therefore refused.”

[22]On 26th September 2023 the Claimant sought a review of the ECF decision. The application was supported by further reasons but did not include any further evidence. The review request included this observation about the decision letter:

“The Decision Maker abruptly stops at this point. It is acknowledged that the Decision Maker goes on to reference the ladder incident later in the refusal letter, but only in relation to threats (paragraph 2(1)(c) Annex B CICS 2012). There is still no consideration of the argument that he has suffered an act or omission of a violent nature causing physical injury, nor any analysis of the submission that CICA has erred in its review decision.”

[23]It is necessary to set out in some detail the chronology of the review undertaken by the Defendant given that one of the Grounds pursued by the Claimant argues that there has been unreasonable delay and seeks declaratory relief to that effect.

[24]On 7th November the Defendant asked the Claimant to confirm whether his civil claim for compensation had been determined and sought a copy of any judgment or pleadings in that claim. The Claimant replied on 14th November informing the Defendant that no proceedings had been issued after advice that the civil claim did not have reasonable prospects of success and limitation had in any event expired.

[25]On 21st November the Defendant asked the Claimant for a copy of any legal advice received about the prospects of success in any civil claim. By letter dated 28th November the Claimant declined to share any advice with the Defendant. On 22nd February 2024 the Defendant explained why the advice was required and repeated the request that the Claimant should provide it. The advice was then provided on 25th March 2024.

[26]Internal records held by the Defendant record that consideration was being given to the Claimant’s case by 31st May at the latest. Two aspects of the internal notes are significant. Firstly, the note records that:

“The main incident with which we are concerned is the applicant falling off a ladder requiring 23 stitches as a result of lacerations caused to his leg.”

[27]Secondly, the note also reveals that there were internal discussions as to how to progress and determine the application for a review:

“Discussed with HK - sols say ‘modern slavery’ equals crime of violence, HK agreed that case centres around whether there is on current facts a ‘crime of violence’. We really need to see what applicant says about this, what were the threats that were made etc. Could refuse, however we could request FI on this point (hearing on 4/6/24), if they set this out, we could grant, if they say they haven't taken instructions then we could provide legal help to enable them to do this and seek to adjourn the hearing. Subject to their response to the above I would say that this is a tricky case and would not expect the applicant to be able to marshal the arguments.”

[28]On 31st May following that internal note the Defendant wrote to the Claimant, apologised for the delay in communication and observed inter alia that:

“… you have not set out what specific threats were made to your client and have consequently not yet shown that your client was the victim of a ‘crime of violence’. Without an explanation the tribunal may well decide to dismiss the appeal. Can you please therefore set out what your instructions are beyond the assertion that modern slavery equates to being a crime of violence what is the factual dynamic underpinning his claim for compensation and what were the threats made.”

[29]On 3rd June the Claimant’s representatives replied:

“…we fully intend to particularise the threats made against our client so that the tribunal can decide whether or not he has been the victim of a crime of violence within the meaning of the CICA scheme particularly with regard to the ration [sic] in RN. This is the reason we are applying for ECF. Our client cannot speak English, and it is suspected that he has a learning disability. A grant of ECF means we will be able to take his instructions regarding threats with an interpreter in a way which accommodates his suspected learning disability. Without ECF he will not be able to give such instructions unable to prepare for his appeal before the tribunal. Thank you for your consideration.”

[30]On 17th June 2024 the Defendant informed the Claimant’s representatives of the outcome of the review. The Director maintained the decision not to award full representation but awarded legal help:

“You have requested full representation to represent your client at an appeal hearing against a decision of the CICA. You have stated that the prospects of success are ‘good’ and have presented in the documents provided as best you can your client’s case. You concede though that the key to a successful outcome is being able to set out and particularise the specific threats that were made to your client to demonstrate that your client was the victim of a ‘crime of violence’. You have not done so yet and accordingly cannot establish what the prospects of success are. You have therefore not shown that the criteria for full representation are satisfied. I have though gone on to consider whether another level of legal aid (for advice and assistance only) should be made available. To that end, I am satisfied that regulation 32 of the Civil Legal Aid (Merits Criteria) Regulations is met and consequently I am prepared to grant legal help in this case. This will enable you to obtain full instructions, advise your client accordingly and if need be make written submissions to the tribunal. You may also make a further application for legal representation should the need still arise, and the relevant criteria are then met. For the avoidance of doubt legal help does not cover advocacy.”

[31]On 10th July 2024 the Claimant’s representatives wrote to the Defendant noting the outcome of the review and stating:

“Our understanding is that we are not in agreement as to the merits of the Applicant’s appeal. We note that you are of the view that further representation is needed in order to establish prospects of success. In such circumstances, the most appropriate form of civil legal services would surely be investigative representation (“IR”) in line with Reg.18(3) Civil Legal Aid (Merits Criteria) Regulations 2013..”

[32]The letter continued:

“It is unclear why you have not granted IR and instead decided to make a grant of legal help. Please could you direct us to any such authority or policy to support this approach? As you rightly point out, under legal help the Applicant cannot instruct an advocate. Trafficking compensation is a developing area of law, and it is our experience that trafficking survivors require advice from counsel across the lifetime of the appeal. A grant of investigative representation would allow the Applicant to instruct counsel to advise and review witness evidence, as well as draft grounds of appeal to submit alongside the application for appeal. Currently, the Applicant has been put in the invidious position of seeking multiple extensions of time before the First-tier Tribunal to submit the grounds of appeal while resolving his ECF application.”

[33]On 20th September 2024 the Director responded and maintained the review decision. Some of the delay in response was occasioned by the original letter having been uploaded in such a way that the Director was unaware of it before it was resubmitted on 20th August 2024. The Director’s reasons in the 20th September communication are important in the context of the arguments advanced in the hearing before me and I have therefore set them out in full:

“Dear Provider Thank you for your further letter which was sent under the previous (closed) legal appeal request. Providing your response in that way does not enable the request to be picked up; I understand that you have been advised of that now. I have considered your further representations. What you state does not add anything. The position remains that you do not have full instructions from your client (you say you need an interpreter) the decision of 17/6/24 underscores that: ‘You concede though that the key to a successful outcome is being able to set out and particularise the specific threats that were made to your client to demonstrate that your client was the victim of a ‘crime of violence’.’ You will be aware that to meet the criteria for Investigative Representation you need to show amongst other things and as per regulation 40(1) of the Civil Legal Aid (Merits Criteria) Regulations that: (i) substantial investigative work is required before prospects can be determined; and (ii) there are reasonable grounds for believing that once the investigative work is carried out the case will satisfy the criteria for full representation. The obtaining of a statement from your client does not amount to ‘substantial investigative work’; you have referred to the need to instruct counsel, however as a contracted provider with expertise in this area of law it is unclear why that would be necessary in this case. It is also unclear that even if the investigative work could be considered ‘substantial’ that you will be able to demonstrate that the remaining criteria as to prospects of success for example would be met. Please see the Lord Chancellor's Guidance under s4 of the LASPO Act at paragraphs 6.11 to 6.14. As stated in the decision of 17/6/24 the provision of legal help will: ‘…enable you to obtain full instructions, advise your clients accordingly and if need be make written submissions to the tribunal. You may also make a further application for legal representation should the need still arise, and the relevant criteria are then met.’ It is not disproportionate to make a further application for legal representation if necessary. Accordingly the decision of 17/6/24 remains.”

As stated in the decision of 17/6/24 the provision of legal help will: Accordingly the decision of 17/6/24 remains.”

The Claim

[34]Lang J granted permission to Mr Szczurkowski to advance his Claim under three grounds:(1) Ground One – ‘Statutory Obligation’: The Defendant made an error of law in failing to consider the grant of investigative representation.

(2) Ground Two – ‘Irrationality’: The decision not to grant investigative representation was irrational.

(3) Ground Three – ‘Delay’: The delay in determining the application was unlawful.

[35]In addition to those three grounds the Claimant now seeks permission to argue two further grounds namely: (4) Ground Four – ‘Frustration of Statutory Purpose’: The decision of the Defendant frustrates the statutory purpose of the Legal Aid, Sentencing and Punishment of Offenders Act 2012. (5) Ground Five – ‘Failure to Consider Paragraph 2(1)(b)’: The Defendant fell into error by failing to determine the prospects of success in respect of the Claimant’s case under Paragraph 2(1)(b) of Annex B to the Criminal Injuries Compensation Scheme. The Law 36. The Criminal Injuries Compensation Scheme

The Law

[36]The Criminal Injuries Compensation Act 1995 requires the Secretary of State to make arrangements for the payment of compensation to persons who have suffered criminal injuries. Those payments are administered through a Criminal Injuries Compensation Scheme laid before Parliament in accordance with Section 11 of the Act.

[37]The Criminal Injuries Compensation Scheme 2012 (amended on 13th June 2019) (“the Scheme”) contains, inter alia, provisions relating to scheme eligibility. Paragraph 4 of the Scheme provides:

“A person may be eligible for an award under this Scheme if theysustain a criminal injury which is directly attributable to their being a direct victim of a crime of violence committed in a relevantplace. The meaning of ‘crime of violence’ is explained in Annex B.”

[38]Paragraph 1 of Annex B makes it clear that it is not enough for a Claimant to be a victim of crime per se, they must be the victim of a crime of violence, as defined in Paragraph 2 of Annex B:

“2. (1) Subject to paragraph 3, a ‘crime of violence’ is a crime which involves: (a) a physical attack; (b) any other act or omission of a violent nature which causes physical injury to a person; (c) a threat against a person, causing fear of immediate violence in circumstances which would cause a person of reasonable firmness to be put in such fear; (d) a sexual assault to which a person did not in fact consent; or (e) arson or fire-raising. (2) An act or omission under sub-paragraph (1) will not constitute a crime of violence unless it is done either intentionally or recklessly.”

[39]Annex B therefore requires a two-step approach to an assessment of eligibility for compensation:(1) Was the Claimant the victim of crime?

(2) Was that crime a crime of violence?

[40]Whether there has been a crime of violence is not determined by the factual context in which the underlying crime occurred, but rather by reference to the crime itself and its constituent ingredients. As Upper Tribunal

Judge Wright put it in R (Criminal Injuries Compensation Authority) v FTT [2026] 1 WLR 581 at [45]:

“The words used in the sub-paragraphs in paragraph 2(1), however, are redolent of the constituent ingredients of particular criminal offences rather than simply the factual matrix within which any crime may occur. Moreover, the phrase ‘a crime which involves’ is more obviously concerned with the ingredients of the offence itself rather than simply its factual setting.”

[41]The victim of an offence contrary to the provisions of the Modern Slavery Act 2015 will not therefore be the victim of a crime of violence per se. As Calver J observed in R (HJK) v Director of Legal Aid Casework

[2025] 1 WLR 3740

at [19]:

“Trafficking is not considered a crime of violence per se; instead, the claimants are required to show that during the course of their time being trafficked, they suffered injuries as a result of (at least one of) the types of acts described above.”

[42]In R (RN) v First-tier Tribunal

[2024] 1 WLR 814

the Court of Appeal considered the meaning of Paragraph 2(1)(c) of Annex B and concluded that it should be construed by reference to the offence of common assault (Nicola Davies LJ at [43]):

“The words ‘a threat against a person, causing fear of immediate violence’ as set out in paragraph 2(1)(c) of Annex B to the Scheme are a reference to the criminal offence of common assault in the law of England and Wales. In my view, there is no cogent reason to find that Parliament intended the Scheme to take a narrower approach to the requirement of ‘fear of immediate violence’ than that contained in the common law.”

[43]It follows that a fear of immediate violence is to be construed as a fear of violence at some time not excluding the immediate future. The further question raised in argument in RN concerning whether reference to physical injury in Paragraph 2(1)(b) included mental injury was not resolved by the Court (see Nicola Davies LJ at [99]). The facts of this Claim have not required me to address that issue. Appeal to the First-tier Tribunal

[44]The Scheme rules provide both a right of review against a refusal of compensation and thereafter a right of appeal to the FTT. Paragraph 125 of the Scheme is in these terms:

“125. An applicant who is dissatisfied with a decision on a review, or adetermination on re-opening under paragraph 124, may appeal tothe Tribunal against that decision or determination in accordancewith the rules of the Tribunal.”

Provisions Governing Legal Aid Entitlement

[45]The Legal Aid, Sentencing and Punishment of Offenders Act 2012 (“LASPO”) places an obligation upon the Lord Chancellor to provide civil Legal Aid to those individuals who are entitled to assistance in accordance with Section 9 of the Act:

“9. General cases (1) Civil legal services are to be available to an individual under this Part if— (a) they are civil legal services described in Part 1 of Schedule 1, and (b) the Director has determined that the individual qualifies for the services in accordance with this Part (and has not withdrawn the determination). (2) The Lord Chancellor may by order— (a) add services to Part 1 of Schedule 1, or (b) vary or omit services described in that Part, (whether by modifying that Part or Part 2, 3 or 4 of the Schedule).”

[46]It is common ground that an appeal to the FTT is not ‘in scope’ for Legal Aid provision as described in Part 1 of Schedule 1 to LASPO. Although there is some disagreement between the parties as to why that is the case, it is immaterial to the issues in this Claim, and I do not need to resolve the competing arguments. What matters is that as a consequence of being ‘out of scope’ the only entitlement the Claimant had to Legal Aid funding was if he was eligible for ECF in accordance with Section 10 LASPO (the relevant parts of which are):

“10 Exceptional cases (1) Civil legal services other than services described in Part 1 of Schedule 1 are to be available to an individual under this Part if subsection (2) or (4) is satisfied. (2) This subsection is satisfied where the Director— (a) has made an exceptional case determination in relation to the individual and the services, and (b) has determined that the individual qualifies for the services in accordance with this Part, (and has not withdrawn either determination). (3) For the purposes of subsection (2), an exceptional case determination is a determination— (a) that it is necessary to make the services available to the individual under this Part because failure to do so would be a breach of— (i) the individual’s Convention rights (within the meaning of the Human Rights Act 1998), or (ii) any rights of the individual to the provision of legal services that are [assimilated enforceable rights]1 , or (b) that it is appropriate to do so, in the particular circumstances of the case, having regard to any risk that failure to do so would be such a breach.”

[47]Section 11(1) LASPO provides:

“11 Qualifying for civil legal aid (1) The Director must determine whether an individual qualifies under this Part for civil legal services in accordance with— (a) section 21 (financial resources) and regulations under that section, and (b) criteria set out in regulations made under this paragraph.”

[48]The Director is therefore placed under a statutory obligation to make a determination of eligibility by application of the Civil Legal Aid (Merits Criteria) Regulations 2013 SI 2013/104 (“the Merits Regulations”).

[49]Section 11(4) of LASPO places a duty on the Lord Chancellor to seek to ensure that where an individual may qualify for more than one form of legal service the individual qualifies for the legal service that is the most appropriate having regard to the criteria set out in the Regulations:

“(4) In setting the criteria, the Lord Chancellor must seek to secure that, in cases in which more than one form of civil legal service could be provided for an individual, the individual qualifies under this Part for the form of service which in all the circumstances is the most appropriate having regard to the criteria.”

[50]Section 12(1) provides that, if the Director is satisfied that an individual qualifies for the provision of civil legal services, she must specify the type of service that will be provided:

“12 Determinations (1) A determination by the Director that an individual qualifies under this Part for civil legal services must specify— (a) the type of services, and (b) the matters in relation to which the services are to be available.”

Relevant Forms of Civil Legal Services

[51]Regulation 12 of the Merits Regulations identifies the different forms of civil legal services that are available:

“12. Form of civil legal services (1) Subject to Part 3 (availability of forms of civil legal services), when determining whether an individual qualifies for civil legal services under Part 1 of the Act, the Director must apply the merits criteria which are relevant to each form of civil legal services set out in paragraph (3). (2) Subject to Part 3 (availability of forms of civil legal services), when determining whether a legal person qualifies for civil legal services under Part 1 of the Act by virtue of the criteria in Chapter 8 of Part 6, the Director must apply the merits criteria which are relevant to each of the forms of civil legal services set out in paragraph (3)(a) or (f). (3) “Form of civil legal services” means— (a) legal help; (b) help at court; (c) family help; (d) family mediation; (e) help with family mediation; (f) legal representation; and (g) other legal services, which are further defined in regulations 13 to 19.” which are further defined in regulations 13 to 19.”

[52]For the purposes of this Claim the relevant forms of civil legal services in Regulation 12 are 12(3)(a) legal help and 12(3)(f) legal representation. Legal Help

[53]Legal help is defined in Regulation 13 of the Merits Regulations:

“13. Legal help ‘Legal help’ means the provision of civil legal services other than— (a) acting as a mediator or arbitrator; (b) issuing or conducting court proceedings; (c) instructing an advocate in proceedings; (d) preparing to provide advocacy in proceedings; or (e) advocacy in proceedings.”

[54]The merits criteria for the grant of legal help are set out in Regulation 32:

“32. Criteria for determinations for legal help An individual may qualify for legal help only if the Director is satisfied that the following criteria are met— (a) it is reasonable for the individual to be provided with legal help, having regard to any potential sources of funding for the individual other than under Part 1 of the Act; and (b) there is likely to be sufficient benefit to the individual, having regard to all the circumstances of the case, including the circumstances of the individual, to justify the cost of provision of legal help.”

Legal Representation

[55]Regulation 18 of the Merits Regulations explains that legal representation may be provided in two distinct forms, namely investigative representation or full representation:

“18. — Legal representation (1) Legal representation may be provided as either investigative representation or full representation. (2) ‘Legal representation’ means the provision of civil legal services, other than acting as a mediator or arbitrator, to an individual or legal person in particular proceedings where that individual or legal person— (a) is a party to those proceedings; ………………. (b) wishes to be joined as a party to those proceedings; or (c) is contemplating issuing those proceedings. (3) ‘Investigative representation’ means legal representation which is limited to the investigation of the strength of the contemplated proceedings and includes the issuing and conducting of proceedings but only so far as necessary— (a) to obtain disclosure of information relevant to the prospects of success of the proceedings; (b) to protect the position of the individual or legal person applying for investigative representation in relation to an urgent hearing; or (c) to protect the position of the individual or legal person applying for investigative representation in relation to the time limit for the issue of the proceedings. (4) ‘Full representation’ means legal representation other than investigative representation.”

[56]The merits criteria for full and investigative representation are different, and Regulation 41 sets out the criteria for the grant of full representation:

“41. Criteria for determinations for full representation An individual may qualify for full representation only if the Director is satisfied that the criteria in regulation 39 (standard criteria for determinations for legal representation) and the following criteria are met—– (a) the cost benefit criteria in regulation 42; (b) the prospects of success criterion in regulation 43; and (c) if the individual's claim forms part of a multi-party action and is primarily a claim for damages or other sum of money in which the likely damages do not exceed £5,000, the multi-party action damages criterion in regulation 44.”

[57]The prospects of success criterion in Regulation 43 is as follows:

“43. Prospects of success criterion for determinations for full representation The prospects of success criterion is only met if the Director is satisfied that the prospects of success are— (a) very good, good or moderate; or (b) borderline or marginal, and the case is— (i) of significant wider public interest; or (ii) a case with overwhelming importance to the individual.”

[58]Regulation 43 itself is to be read alongside Regulation 5 which sets out the prospects of success test:

“5. — Prospects of success test (1) Where the Director assesses, for the purposes of these Regulations, the prospects of success of a matter to which an application for civil legal services relates, the Director must classify the prospects of that matter as follows— (a) ‘very good’, which means an 80% or more chance of obtaining a successful outcome; (b) ‘good’, which means a 60% or more chance, but less than an 80% chance, of obtaining a successful outcome; (c) ‘moderate’, which means a 50% or more chance, but less than a 60% chance, of obtaining a successful outcome; (d) ‘borderline’, which means that the case is not “unclear” but that it is not possible, by reason of disputed law, fact or expert evidence, to— (i) decide that the chance of obtaining a successful outcome is 50% or more; or (ii) classify the prospects as marginal orpoor; (da) ‘marginal’, which means a 45% or more chance, but less than a 50% chance, of obtaining a successful outcome; (e) ‘poor’, which means less than a 45% chance of obtaining a successful outcome; or (f) ‘unclear’, which has the meaning given in paragraph (2). (2) ‘Unclear’ means the Director cannot put the case into any of the categories in paragraph (1)(a) to [(e)] because, in all the circumstances of the case, there are identifiable investigations which could be carried out, after which it should be possible for the Director to make a reliable estimate of the prospects of success .”

[59]There is no dispute that the Claimant did not fall within the exceptions provided by Regulation 43(b)(i) or (ii) and therefore the Director could only grant full representation if satisfied that the prospects of success were at least 50%.

[60]The criteria for the grant of investigative representation are to be found in Regulation 40 of the Merits Regulations:

“40. — Criteria for determinations for investigative representation (1) An individual may qualify for investigative representation only if the Director is satisfied that the criteria in regulation 39 (standard criteria for determinations for legal representation) and the following criteria are met— (a) the prospects of success of the case are unclear and substantial investigative work is required before those prospects can be determined; (b) the Director has reasonable grounds for believing that, once the investigative work to be carried out under investigative representation is completed, the case will satisfy the criteria for full representation and, in particular, will meet the cost benefit criteria in regulation 42 and the prospects of success criterion in regulation 43; and (c) subject to paragraph (2), if the individual's claim is primarily a claim for damages or other sum of money in which the likely damages do not exceed £5,000, the case must be of significant wider public interest. (2) For the purposes of paragraph (1)(c), if the claim forms part of a multi-party action only the lead claim within that action is capable of being a case of significant wider public interest.”

Procedural Requirements relating to ECF Applications

[61]Regulation 66(2)(a) of The Civil Legal Aid (Procedure) Regulations 2012 SI 2012/3098 (“the Procedure Regulations”) provides that: “(2) Except as provided in this Part— (a) determinations under section 10 of the Act must be made and withdrawn in accordance with the provisions of these Regulations which apply to the form of civil legal services which is the subject of the application;”.

[62]Regulation 67(2)(a) provides for the form in which an application for ECF funding must be made: “(2) An application for a determination under section 10 of the Act must— (a) be made to the Director in writing in a form specified by the Lord Chancellor and signed by the individual and any proposed provider;”.

[63]By Regulation 66 the form of civil legal service being applied for must be identified. The form specified by the Lord Chancellor in accordance with Regulation 67(2)(a) for the making of applications requires an applicant to identify the type of legal representation being applied for and makes a distinction between full and investigative representation on its face.

[64]Regulation 68 requires the Director to give written reasons for any determination and to give notice of the right to review. Regulation 69 sets out the procedure for the review of a determination. By Regulation 69(3):

“(3) The Director must consider the application and any written representations and may— (a) confirm or amend the decision which is the subject of the review; or (b) substitute a new decision.”

[65]The decision of the Director on review is final. The Procedure Regulations do not permit the variation or withdrawal of a refusal to grant ECF by the Director after a review has concluded.

Submissions

[66]A preliminary issue appeared to arise in the written arguments as to which decision of the Defendant was subject to challenge in this Claim; the review decision communicated on 17th June 2024, the subsequent additional reasoning contained in the letter of 20th September 2024, or both.

[67]In the course of submissions it was conceded on behalf of the Claimant that the Director had no power to vary or withdraw her decision on the review as communicated in the 17th June letter, she having become functus officio in accordance with the Procedure Regulations after she communicated the decision to the Claimant.

[68]This was a sensible concession but one with two clear consequences namely:(i) The focus of the Court is therefore upon the material that was before the Director prior to the 17th June 2024 decision with material that post-dated the review not capable of affecting the lawfulness of the 17th June decision; and

(ii) whilst the content of the letter of 20th September is amenable to judicial review, any error of law as might be identified in that later communication would not invalidate the 17th June decision or entitle the Court to quash it.

[69]Mr Howell on behalf of the Defendant further submitted that the 20th September communication did not contain any error of law and therefore even if the Claimant can establish an error in law on the part of the Director in failing to consider the grant of investigative representation in the 17th June decision, the later reasons rectify that error and relief should be refused pursuant to Section 31(2A) of the Senior Courts Act 1981. Ground One – Statutory Obligation

[70]Mr Habteslasie submits that because the Claimant had made an application for full representation, the proper construction of the Regulations placed the Director under a positive obligation to also consider the grant of investigative representation in the event that full representation was not granted. That is because, on the facts, the Director did not conclude that the prospects were borderline, marginal or poor, and therefore a duty arose to consider whether they were ‘unclear’ such that investigative representation should be granted.

[71]He argues that the statutory scheme is concerned with identifying the legal services for which an applicant qualifies. Regulation 12, which was described in oral submissions as the ‘centrepiece’ of the Claimant’s case on Ground One, imposes an obligation on the Director to consider each form of legal service listed therein that may be relevant to an applicant and to apply the merits criteria applicable to each of them. Mr Habteslasie does not suggest that the obligation extends to the Director working through the entire list of services given that some would plainly be irrelevant, but he argues that any which are potentially relevant must be considered and the merits criteria applied to each that is.

[72]Mr Habteslasie goes further and submits that, given the use of ‘qualifies’ in the statutory language, the obligation imposed on the Defendant is to grant the most generous form of service that an applicant may qualify for.

[73]He argues that the relationship between Investigative and full representation is significant in the context of this argument and referred me to the guidance issued by the Lord Chancellor under Section 4 of LASPO which provides at Paragraph 6.5 that:

“Each form of civil legal service is separate in that an individual will apply for aspecific level of service and the Director or the provider will consider the relevantcriteria and either grant or refuse the application. There are however, twoexceptions to this: (i) Legal Representation may take the form of either investigative representation or full representation. This depends on whether it is possible to estimate the prospects of success of the claim. Therefore, a person applying for full representation could be refused that but granted investigative representation instead, if the prospects of success were unclear and further investigation was required. Although it is unlikely, an application for investigative representation could be granted as a certificate for full representation if the relevant criteria were satisfied.”

[74]He argues that the Director’s decision as communicated on 17th June, amounts to a decision that the prospects of success in the claim were ‘unclear’ as defined in Regulation 5 and therefore applying the guidance, there was a positive obligation to consider investigative representation (and to grant it). The failure by the Director to consider investigative representation (the Defendant conceding that she did not consider it in the 17th June decision) renders her decision on the review determination unlawful.

[75]Mr Howell on behalf of the Defendant submits that there was no statutory duty imposed on the Director to consider the grant of investigative representation. He argues that the Court should interpret the statutory scheme in such a way that it imposes only reasonable and proportionate burdens on the Defendant.

[76]The Defendant submits that Section 12(3)(a) of LASPO creates a regulation making power, the relevant regulations for these purposes being the Procedure Regulations. The forms of civil legal services listed in Regulation 3 are further defined in Regulations 4 to 10 of the Procedure Regulations. In Regulation 6, which concerns ‘Family help’, there are two forms of help available, namely ‘Family help (lower)’ and ‘Family help (higher)’. Similarly in Regulation 9 legal representation can take two forms, either investigative or full. Whereas the Claimant asserts that legal representation is a unitary form of service, the Defendant argues that the term legal representation is a ‘portmanteau’ term embracing two distinct forms of service. Mr Howell developed that submission by reference to two Regulations.

[77]First, he argues that Procedure Regulation 29(2) (which is concerned with licensed work) treats family help (higher) as a form of civil legal service despite family help (higher) not appearing in the list of forms of legal service in Regulation 3 (where only family help is referenced). Thus he argues that the list in Regulation 3 includes terms that cover multiple forms of civil legal service.

[78]Second, by reference to Procedure Regulations 37(3)(a) and 37(4)(b) (which relate to Legal Aid Certificates) he submits that if legal representation was a unitary form of Legal Service there would be no need to amend the certificate as between investigative and full representation, whereas in fact Regulation 37(4)(b) confers a specific power on the Director to amend a certificate granting investigative representation to one recording full representation where on a subsequent determination an individual is found to qualify for full representation in the same proceedings.

[79]Mr Howell stresses that Procedure Regulation 66(2)(a) requires determinations to be made and withdrawn in accordance with the form of civil legal services applied for. The application must be in writing in accordance with Regulation 67(2)(a), and the written application of the Claimant was for full representation. It was open to the Claimant to apply for investigative representation or indeed to apply for full or investigative Representation. Had it been the case that the Claimant had applied for investigative representation then a failure or refusal to consider that form of service would be irrational, but that is not the case here.

[80]The statutory scheme places a written application before the Director, and the duty of the Director is to determine the application for the form of civil legal service that has been made. When conducting a review, the requirement to consider the application that has in fact been made is an express one by Regulation 69(3).

[81]Mr Howell relies upon the decision of Burnett LJ (as he then was) in R (Behary) v Secretary of State for the Home Department

[2016] 4 WLR 136

for the proposition that in general, the obligation imposed on a decision maker is decide the application before them [27]:

“Applicants for leave to enter or remain in the United Kingdom make their applications and the Home Oﬃce considers and decides the application made. It cannot be expected to chase shadows.”

[82]The Judgment continued at [39]:

“In my view there was no obligation upon the Home Oﬃce to consider the grant of leave to remain outside the Rules in Mr Ullah’s case. There is an obligation to consider such a grant when expressly asked to do so and, if but briefly, deal with any material relied upon by an applicant in support. Outside cases where there has been a request there may exist, at least in theory, cases where the facts are so striking that it would be irrational in a public law sense not to consider the grant of leave outside the rules or at least seek clarification from the applicant whether he was seeking such leave.”

[83]The Defendant submits that the high point of the Claimant’s case on statutory duty is the requirement in Regulation 12 of the Merits Regulations to consider the merits criteria relevant to ‘each form’ of civil legal service listed at Regulation 12(3). But that argument is obviously not well founded as the Claimant has to concede by importing a ‘relevance limitation’ into the obligation placed on the Director to cure the obvious difficulty that if the Regulation positively required the Director work through ‘each form’ of civil legal service therein listed it would require consideration of forms of legal service that could have no conceivable relevance to the Claimant’s case, such as family help or family mediation.

[84]Therefore says Mr Howell Regulation 12 has to be read in the context of all of the Regulations and the overal purpose of the scheme. There could be no sound reason of legislative policy to require the Director to consider every form of civil legal services in every case.

[85]When completing the application form the Claimant’s representatives addressed questions arising from Regulation 43 (the prospects of success criterion for the grant of full representation) in such a way as to exclude from the Director’s determination an application on the basis of Regulation 43(b) being satisfied (a borderline or marginal case with significant public interest or overwhelming importance to the individual). This demonstrates, says the Defendant, that the Claimant’s representatives were restricting the form of civil legal service being applied for and the Director had no duty to consider an application wider than that being made.

[86]The Defendant rejects the Claimant’s submission that the statutory regime required the Director to identify the most generous form of civil legal service that an applicant might qualify for. There is quite simply no authority for that proposition and says Mr Howell, the reverse is true. The Lord Chancellor’s Exceptional Funding Guidance (Non-Inquests), which the Director is required to consider, is to this effect:

“Extent of services to be provided 3.28. Where caseworkers conclude that legal aid is required to be provided under section 10, this should be limited to the minimum services required to meet the obligation under ECHR or to satisfy any retained enforceable EU right to legal aid. For example, it could be through providing assistance in the form of specific levels of service, or through limitations placed on funding certificates. 3.29. For example, legal help allows for a range of services to be provided, including the giving of oral and written advice and assistance, such as writing letters on behalf of the client, or negotiating with, for example, a local council or health authority. Legal help can also be used to assist a client in setting out legal arguments for an appeal application (for example, to a tribunal). 3.30. Where an individual makes an application for full representation, caseworkers should therefore consider whether, in the particular circumstances of the case, it is really necessary to provide full representation or whether it would suffice to provide civil legal services in the form of Legal Help – for example, to provide advice and assistance in the preparation of a written claim in a welfare benefits tribunal.”

[87]In so far as the Claimant relies on Paragraph 6.5 of other guidance issued under Section 4 of LASPO the Defendant argues that all Paragraph 6.5 does is recognise a discretion. It does not create a positive obligation.

[88]In so far as the Claimant argues that the wording of the 17th June decision amounts to a finding by the Director that the prospects of success were unclear and that therefore that finding triggered an obligation to consider investigative representation Mr Howell argues that(i) all the Director is in fact communicating is that the test applicable to the service applied for has not been met and

(ii) even if the reasoning amounted to a finding that the prospects of success were unclear that does not trigger a statutory duty to consider investigative representation. The Claimant’s factual arguments reveal that this point is in reality a rationality challenge.

[89]In conclusion the Defendant says that the challenge to the Director’s decision on the basis of a statutory duty being imposed on her to consider investigative representation is misconceived and the real challenge to her decision is on the basis of irrationality. Ground Two – Irrationality

[90]The Claimant submits that the decision of the Director on 17th June to grant legal help, and not to grant investigative representation was irrational. At the heart of that submission is the contention that the Defendant’s own reasoning amounted a determination that the merits criteria in Regulation 40 for the grant of investigative representation were met. The Claimant relies on the contemporaneous documents that it is said reveal a belief on the part of the Defendant that further information about threats made to the Claimant could tip the balance in terms of the prospects of success:

“We really need to see what applicant says about this, what were the threats that were made etc. Could refuse, however we could request FI on this point (hearing on 4/6/24), if they set this out, we could grant, if they say they haven't taken instructions then we could provide legal help to enable them to do this and seek to adjourn the hearing. Subject to their response to the above I would say that this is a tricky case and would not expect the applicant to be able to marshal the arguments.”

[91]The Claimant further submits that the investigations that would be required would be substantial and that much was obvious from Paragraphs 80 to 86 of the Claimant’s statement of case for ECF as had been submitted to the Director with the application.

[92]The Claimant avers that the Defendant had already decided to grant a different form of legal service to the Claimant in the form of legal help, and that this decision underscores the irrationality of the decision and fails to acknowledge that investigative representation would be a more appropriate form of legal service than legal help, not least because it would allow the Claimant to take steps to progress his appeal to the FTT thereby protecting his position in terms of the statutory time limit and better enabling him to gather further information to obtain a grant of full representation.

[93]Mr Habteslasie submits that as legal help does not allow for counsel to be instructed or for grounds of appeal to be settled, it is therefore an inferior level of service to that which investigative representation would provide. He founds that submission on Regulation 13(c) and (e) of the Merits Regulations which he says must be read together and prohibit the instruction of counsel.

[94]The Defendant replies that the core question is whether or not it was irrational not to consider granting investigative representation on 17th June 2024. Were the facts so striking that it was irrational for the Defendant not to have considered the question at that stage?

[95]Mr Howell submits that the short answer to that question is that the Director did consider an alternative form of legal support and granted it in the form of legal help. The focus of the ground therefore becomes whether it was irrational not to grant investigative representation in the light of the grant of legal help?

[96]The Defendant submits that legal help would entitle a provider to conduct tribunal proceedings, and to settle grounds of appeal. The advocacy exception does not preclude the instruction of counsel to take steps in the proceedings falling short of performing advocacy. That is clear from Regulation 2 which defines an advocate as: “a person who exercises a right of audience before a court, tribunal or other person;”.

[97]That counsel can be instructed under legal help is further clear from the provisions of the 2024 Standard Civil Contract which provides at Paragraphs 3.58 and 3.59: “3.58 Where you instruct Counsel under Legal Help in a case that is covered by a standard fee you are responsible for agreeing Counsel’s fees and paying them out of the Standard Fee. Counsel’s fees under Legal Help do not count as a disbursement unless the case escape from the relevant Standard Fee and may not be taken into account in determining whether a case escapes from that fee. 3.59 If you instruct Counsel under Legal Help and the case escapes from the Standard Fee you may, when claiming your fees on the basis of Hourly Rates, Claim payment from us of Counsel’s fees as if such fees were a disbursement incurred by you. The Hourly Rates set out in the Remuneration Regulations shall not apply to Counsel’s fees claimed under this Paragraph 3.59”.

[98]The Defendant submits that far from the Claimant being deprived of the ‘benefits’ of investigative representation, he would in fact be better off with legal help. By Regulation 18 of the Merits Regulations investigative representation is narrowly defined:

“(3) “Investigative representation” means legal representation which is limited to the investigation of the strength of the contemplated proceedings and includes the issuing and conducting of proceedings but only so far as necessary— (a) to obtain disclosure of information relevant to the prospects of success of the proceedings; (b) to protect the position of the individual or legal person applying for investigative representation in relation to an urgent hearing; or (c) to protect the position of the individual or legal person applying for investigative representation in relation to the time limit for the issue of the proceedings.”

[99]The Defendant further argues that there is simply no evidence that either ATLEU or counsel instructed by them would have refused to act under the grant of legal help. Whether under legal help or investigative representation the Legal Aid Agency makes an assessment of counsel and solicitors’ fees at the conclusion of a case. There was no greater funding ‘risk’ under legal help than exists under investigative representation.

[100]Mr Howell therefore submits that the irrationality challenge is advanced on the false premise that there is some striking inferiority about legal help as compared to investigative representation. To the contrary he says from the Claimant’s perspective legal help was of more use than investigative representation. Even if he is wrong about that he says that any disadvantage would be so marginal that the Director’s decision could not be described as irrational, particularly in a case where the Claimant had never applied for investigative representation nor addressed the criteria to be satisfied before it could be granted.

[101]The Defendant says this is a complete answer to the irrationality ground but goes further and argues that in any event investigative representation would likely not have been available to the Claimant on the facts.

[102]First, Mr Howell submits that before it can be granted the Director must be satisfied that the investigative work required would be substantial as required by Regulation 40(1) of the Merits Regulations. Guidance issued by the Lord Chancellor defines ‘substantial’ at Paragraph 6.11:

“6.11. In accordance with regulation 40 (1) of the Merits Regulations, investigative representation may only be granted where substantial investigative work is required before prospects can be determined. In deciding whether substantial investigative work is required, it is appropriate to consider disbursements (including for this purpose any counsel’s fees) separate from profit costs. For these purposes substantial investigative work will be where: (i) the solicitor will reasonably need to carry out at least six hours of fee earner investigative work; or (ii) disbursements together with any counsel’s fees would cost £400 or more excluding VAT.”

[103]The statement of case for ECF did contain a table of the work estimated for all steps that might be required up to and including the full hearing of the Claimant’s appeal before the FTT. But that table of predicted costs gave no estimate of the time that would be required to take further instructions from the Claimant to enable the Director to then assess the prospects of success in any appeal. There was no basis for the Defendant to conclude that substantial work would be required to take this limited step, after which a revised application for full representation could be made.

[104]Mr Howell further argues that there were no reasonable grounds on which the Director could have believed in June 2024 that further investigation would result in the prospects of success criteria for full representation being met. He reminds the Court that a reasonable belief means something more than a mere suspicion (see Regina (S and Others) v Chief Constable of the British Transport Police and another

[2014] 1 WLR 1647

[105]The Director quite simply had no idea what the Claimant’s instructions would be if taken. There was nothing more than a possibility that they could have advanced his cause. They could equally have not taken it any further. It was therefore possible that he would have cleared the 50% success hurdle, but there was no reasonable basis for concluding that he would have done. For all of these reasons the Defendant’s decision in June 2024 was not irrational.

[106]The Claimant raised the grant of investigative representation with the Director only after the June review decision. The correspondence of 20th September 2024 sets out with clarity the reasons why investigative representation was not appropriate and says Mr Howell on behalf of the Defendant those reasons are not vitiated by any error of law. Ground Three - Delay

[107]The Claimant relies on the Judgment of Garnham J in R (O and H) v Secretary of State for the Home Department

[2019] EWHC 148 (Admin)

at [89] where the Court reviewed a number of earlier decisions and summarised the principles that could be derived from them:

“From those cases I draw the following principles which seem to me relevant to the present case: i) Delay may be unlawful when the right in question arises as a matter of established status and the delay causes hardship (Phansopkar). ii) An authority acts unlawfully if it fails to have regard to the fact that what is in issue is an established right rather than the claim to a right (Mersin). iii) Delay is also unlawful if it is shown to result from actions or inactions which can be regarded as irrational. However, a failure merely to reach the best standards is not unlawful (FH). iv) The court will not generally involve itself in questions concerning the internal management of a government department (Inland Revenue Commissioners vNational Federation of Self-Employed and Small Businesses Ltd and Arbab) v) The provision of inadequate resources by Government may be relevant to a charge of systematically unlawful delay, but the Courts will be wary of deciding questions that turn on the allocation of scarce resources (Arbab).”

[108]Mr Habteslasie also drew my attention to the Judgment of Collins J in R (FH) v Secretary of State for the Home Department

[2007] EWHC 1571 (Admin)

, in particular to Paragraphs [11] and [25] to [30] of the Judgment, to the extent that the principles to be derived from that judgment had not been summarised by Garnham J in his review of the authorities in O and H.

[109]Mr Habteslasie submits, by reference to the chronology of the review decision, that the delay here has been ‘extreme and inexcusable; and weakly (even half-heartedly) justified’ by the Defendant. Anticipating the Defendant’s response that this ground is entirely academic he submits that it is nonetheless appropriate for the Court to record in its Judgment that there has been unlawful delay in the Claimant’s case.

[110]The Defendant’s position is indeed that this ground is entirely academic. The Claimant seeks no relief other than the judgment itself and that is of no practical advantage to the Claimant whatsoever. Therefore the Court should dismiss this ground on the basis that the rights and obligations of the parties are not affected and there is no good reason in the public interest to determine it: See R (L) v Devon County Council

[2021] EWCA Civ 358

per Elisabeth Laing LJ at [29] and [50] and Peter Jackson LJ at [62].

[111]If the Court does resolve to decide the ground the Defendant submits that the threshold for unlawful delay is very high such that it is not met on the facts of this Claim. Only delay that is “so excessive as to be regarded as manifestly unreasonable” would reach the very high bar set by Elisabeth Laing LJ in R (Ullah) v Secretary of State for the Home Department

[2022] EWCA Civ 550

at [62]. Ground Four – Frustration of Statutory Purpose

[112]The Claimant seeks permission to advance Ground Four on the basis that the Defendant has, by her decision making, frustrated the statutory purpose of the LASPO scheme. It was conceded on behalf of the Claimant in argument that Ground Four does not arise as a freestanding Ground and it stands or falls with Grounds One and Two.

[113]The Defendant argues that permission should be refused because the ground adds nothing to the Claim. Ground Five – Failure to consider Paragraph 2(1)(b)

[114]In the Claimant’s skeleton argument permission is sought to argue this further Ground on the basis that the Defendant ‘failed to have any regard whatsoever and/or to determine the prospects of C’s appeal succeeding on the basis of Paragraph 2(1)(b), in particular on the basis of the Ladder Injury’.

[115]Mr Habteslasie submits that the Statement of Case for ECF made it plain at paragraphs 30 – 37 that the Claimant was seeking to advance his appeal to the FTT on the basis that the CICA decision maker had failed to treat the ladder incident as a crime of violence in accordance with Paragraph 2(1)(b). This was a crime of violence because (per Paragraph 37) ‘he was forced to climb an unsafe ladder’.

[116]A number of documents that were before the Defendant all explained the relevance of the ladder incident in the context of the CICA claim. The CICA claim form made it clear that the Claimant was alleging an assault and, that the injuries he sustained included those caused by the fall from the ladder, so did his review request to the CICA which also made explicit reference to Paragraph 2(1)(b).

[117]The Claimant argues that despite the Defendant being in possession of documents that made it plain that the CICA claim was being advanced on both a Paragraph 2(1)(b) and 2(1)(c) basis, the letter refusing legal aid is focused entirely on 2(1)(c) with no analysis of 2(1)(b) or any consideration of an appeal to the FTT succeeding on a 2(1)(b) basis.

(b) and makes this submission:

“The Applicant submitted that a human trafficker compelling their victim to ascend an unsafe ladder as part of forced and compulsory labour, resulting in horrifying physical injuries, is to be considered an ‘act or omission of a violent nature causing physical injury to person’ (paragraph 2(1)(b) Annex B CICS 2012). Given that the Applicant has suffered injuries as a result of a crime of violence, he is eligible for compensation under the CICS 2012. As set out in the Statement of Case, CICA made errors of law when considering this submission and reached an incorrect conclusion.”

[118]The decision of the Director on 17th June does not reference Paragraph 2(1)(b) at all and reveals that she has ‘mixed up’ Paragraphs 2(1)(b) and 2(1)(c) with all of her reasoning relating to 2(1)(c) and not applying her mind to 2(1)(b) at all.

[119]Mr Habteslasie submits that the internal review documents reveal that whilst the Director did consider the ladder incident she did not do so in the context of Paragraph 2(1)(b). The Claimant’s case on Paragraph 2(1)(b) was not based upon threats issued to compel him to go up the ladder but rather upon his fear of what would happen if he did not. He argues that Paragraph 2(1)(b) is a ‘broad gateway’ that the Defendant’s decision artificially narrows it.

[120]The Defendant submits that this ground is advanced very late in the proceedings and the fact that it has only recently emerged reveals it to be hopelessly misconceived. The Director had to consider the prospect of the Claimant establishing that he had been the victim of a ‘crime of violence’. As the internal note of the Defendant records:

“The main incident with which we are concerned is the applicant falling off a ladder requiring 23 stitches as a result of lacerations caused to his leg.”

[121]The focus of the Director was appropriately on whether or not that incident was a ‘crime of violence’ as the message to the Claimant’s representatives at 14:53 on 31 May 2024 made clear:

“…you have not set out what specific threats were made to your client and have consequently not yet shown that your client was the victim of a ‘crime of violence’.”

[122]The Defendant submits that the reply to that message at 12:45 on 3 June 2024 is instructive because at no stage do the Claimant’s representatives suggest that the Defendant has failed to consider 2(1)(b). Instead, the Claimant’s representatives responded: “You are correct, we fully intend to particularise the threats made against our client so that the tribunal can decide whether he has been the victim of a crime of violence within the meaning of the CICA scheme”.

[123]The CICA determined that the ladder incident was an accident and therefore not “any other act or omission of a violent nature”. The Claimant’s submission to the Director was set out clearly in his statement of case for ECF at [36]. He submitted that Paragraph 2(1)(b) was satisfied: “because of the fear of violence if he did not accede to his traffickers’ demands. He was therefore subject to a violent act in being compelled to climb the ladder”.

[124]The Director’s reasoning for refusing the application for legal representation was indeed a failure to particularise the alleged threats made to the Claimant, but that reasoning was of equal application to Paragraph 2(1)(b) and Paragraph 2(1)(c) of Annex B to the CICA scheme. Decision

[125]It is important that all of the arguments that have been advanced by the Claimant are considered in their proper factual context. This is not an argument about whether the Director was wrong to refuse the application made by the Claimant. It is an argument first about whether having done so, she was under a statutory obligation to consider all other forms of potentially relevant civil legal service that the Claimant might have applied for, but in the event had not. And second as to whether she was wrong to exercise her discretion in the Claimant’s favour by granting him legal help.

[126]That is the proper factual context because it is common ground that full representation was the only form of civil legal services that the Claimant explicitly sought when he submitted his application for ECF. There is no challenge in this Claim, other than in Ground Five, to the Defendant’s refusal to grant the Claimant that form of civil legal service.

[127]This Claim is instead founded on the proposition that although no application was made for investigative representation, when refusing the application for full representation the Director of Legal Aid Casework was under a statutory duty to go on to consider whether she should grant investigative representation or indeed, on the Claimant’s argument, any other form of legal service that might be ‘relevant’.

[128]In fact, and despite the refusal to grant the legal service sought by the Claimant, the Director did exercise her discretion in the Claimant’s favour by granting him an alternative form of civil legal services in the form of legal help. She did so, as her decision explained, to enable his lawyers to take his full instructions, give him advice and engage with the FTT in written submissions. The Claimant says that the exercise of discretion in this way was irrational, not because the Claimant did not need to provide further instructions, receive further legal advice from his lawyers or engage with the FTT, but because the Director should have exercised her discretion differently so as to grant investigative representation to the Claimant, a form of representation that the Claimant has sought to characterise as superior to the, says the Claimant, correspondingly inferior provision of legal help.

[129]It is also important to note when considering all of the Claimant’s grounds of challenge, and as the Director made perfectly clear in her 17th June letter, that this was not a final determination, made for all time, of the Claimant’s entitlement to publicly funded Civil Legal Services to support any appeal to the FTT.

[130]The Defendant’s decision expressly acknowledged that if the Claimant utilised the legal help that had been granted to him, provided further instructions to his lawyers (as they said in correspondence that they intended to take from him), and plugged the gaps in his case that the Director had identified in her (non-impugned) decision to refuse to grant full representation, he could make a further application for full representation that would be assessed on its merits against the relevant criteria.

[131]This was therefore the final decision of the Director on the information before her as of 17th June 2024. It was not the final determination for all time of the Claimant’s entitlement to civil legal services in his proposed appeal to the FTT. Ground One – Statutory Obligation

[132]The determination of Ground One does not require me to decide whether the Director could have granted investigative representation, nor whether investigative representation might have been preferable on the facts. The core question under this Ground is whether the statutory scheme imposes a positive obligation on the Director, when refusing an application for full representation, to go on and consider (and potentially grant) investigative representation where that form of civil legal service was not applied for. A further subsidiary issue arises as to whether the obligation on the Director is generally to award the most generous form of legal service as might be available to any applicant.

[133]The alternative construction of the statutory scheme is that the obligation imposed on the Director is to consider and determine only the application for the civil legal service that has in fact been applied for by an applicant with the Director retaining a residual discretion to grant an alternative form of civil legal service if that would provide an appropriate level of service on the facts. It is necessary to consider the statutory regime as a whole and to read across the provisions of LASPO and both sets of Regulations (Merits and Procedure) in order to determine these issues.

[134]The starting point is Section 1(2)(a) of LASPO which places the Lord Chancellor under an obligation to secure the availability of Civil Legal Aid in the form of civil legal services that are required to be made available by Sections 9 or 10 of the Act. The function of making individual determinations of eligibility is discharged by the Director of Legal Aid Casework who is required, by Sections 4(3)(a) and 4(3)(b), to comply with the directions of the Lord Chancellor and to have regard to guidance issued by the Lord Chancellor when carrying out that function. By Section 4(4) the Director must act independently when applying those directions and guidance to any individual case.

[135]By Section 10 of LASPO civil legal services must be made available to an individual where the Director makes an exceptional case determination, and by Section 10(2)(b) “has determined that the individual qualifies for the services in accordance with this Part”. Section 11 LASPO mandates that the determination by the Director of whether an individual “qualifies’ must be made in accordance with criteria set out in Regulations (the Merits Regulations).

[136]The procedure by which the Director is required to make or withdraw her determinations of eligibility for civil legal services under Section 10 of LASPO is governed by the Procedure Regulations created under Section 12(2) of that Act.

[137]The core statutory obligation of the Director pursuant to the provisions of LASPO is therefore to make an independent assessment of an applicant’s eligibility for ECF under Section 10 of the Act following the procedural requirements set out in the Procedure Regulations, determining eligibility in accordance with the requirements of the Merits Regulations, and having regard to any other guidance or direction issued by the Lord Chancellor.

[138]Do the Procedure and Merit Regulations or any other guidance or direction issued by the Lord Chancellor positively require the Director to consider the grant of civil legal services other than those applied for by an applicant?

[139]By Section 12(3)(a) of LASPO, the Procedure Regulations contain provisions about “the form and content of determinations and applications for determinations”. Regulation 66(2)(a) places the Director under an obligation to make or withdraw a determination in relation to ECF “in accordance with the provisions of these Regulations which apply to the form of civil legal services which is the subject of the application”. This Regulation on its face requires the Director to focus her consideration on the form of civil legal service that is the subject of the application and to apply those aspects of the Regulations that are applicable to that form of service. The Regulation is therefore application focused and not applicant focused.

[140]Regulation 67 requires applications to be submitted in writing and in the form prescribed by the Lord Chancellor. The form requires the applicant to state the form(s) of service being applied for. It is accepted on the facts of this Claim that the Claimant applied only for full representation and that the first mention of investigative representation was after the 17th June decision had been taken.

[141]In the context of an application for a review Regulation 69(3) is explicit in requiring the Director to consider the application that has in fact been made.

[142]I conclude from these provisions that the Procedure Regulations require the Director to consider any application for ECF by having regard to the form of civil legal service that has in fact been applied for, and not to conduct any wider exercise in considering other forms of civil legal service that might conceivably have been applied for. The same obligation is placed on the Director when conducting a review of an earlier decision, the focus is on the form of civil legal service that was applied for. It is unsurprising that the Regulations are framed in this way, were it otherwise the Regulations would place the Director under what would in my view be an unduly onerous burden of having to treat every application for ECF as a moving target in which she was required not only to consider the application that had been made, but any other that might have conceivably been made.

[143]Is there however, as the Claimant argues, some special relationship between full representation and investigative representation that means that when considering an application for full representation a specific obligation arises to consider investigative representation in the alternative?

[144]This submission is founded on the proposition that the form of legal service applied for was legal representation. The Claimant asserts that legal representation is a unitary form of legal service encompassing both full and investigative representation. The Claimant points to Regulation 3 of the Procedure Regulations and Regulation 12 of the Merits Regulations, each of which list legal representation as the form of civil legal service (not full or investigative representation).

[145]In my judgment (and for all of the reasons advanced by the Defendant and summarised earlier in this judgment) legal representation must be construed as an umbrella (or to use the Defendant’s term ‘Portmanteau’) term under which sit two distinct forms of civil legal service, full and investigative representation. Regulation 9 of the Procedure Regulations and Regulation 18 of the Merits Regulations make this clear. Moreover, the Merits Regulations go on in Regulations 40 and 41 to provide distinct criteria for the grant of full and investigative representation respectively. There is no sense in which the Regulations treat investigative representation as a ‘fallback’ entitlement that is triggered automatically by the refusal of full representation.

[146]Nothing in LASPO, the Merits Regulations or the Procedure Regulations imposes a duty on the Director to recast a failed application for full representation into an application for investigative representation, still less to conduct a free-standing assessment of whether some alternative form of representation might have been sought.

[147]Investigative representation performs a specific and limited function within the overall scheme of Civil Legal Aid provision. It is available only where the prospects of success are genuinely unclear, where substantial investigative work is required before those prospects can be assessed, and where there are reasonable grounds for believing that the case will thereafter satisfy the criteria for full representation. Its purpose is not to remedy inadequacies in the preparation of an application for full representation, nor to provide an intermediate or more generous form of assistance to legal help.

[148]Paragraph 6.5 of the Lord Chancellor’s guidance, which recognises that a caseworker may grant investigative representation when refusing an application for full representation, merely refers to the right of the Director to exercise her discretion to grant an alternative form of service on a case-by-case basis. It cannot be elevated into a statutory duty to consider doing so in every case, still less to a duty to grant it.

[149]Properly understood, in my view the relationship between full representation and investigative representation is one of permitted substitution, not mandatory reconsideration. The Director is required to determine the application that has been made, while retaining - but not being bound to exercise - a residual discretion to grant an alternative form of service where the criteria for that service are met and where doing so is appropriate on the facts.

[150]Does Regulation 12 of the Merits Regulations impose a duty on the Director to consider all potentially relevant forms of civil legal service when determining any application? The Claimant describes Regulation 12 of the Merits Regulations as the ‘centrepiece’ of the submission on Ground One, arguing that subject to a ‘relevance’ requirement, it does indeed place the Director under a positive obligation to consider all forms of civil legal service not just the form(s) that have been applied for. I cannot accept that construction of the meaning and purpose of Regulation 12.

[151]In my opinion Regulation 12 presupposes a prior, procedurally valid application for a particular form of service having been made by an applicant. It does no more than require the Director to apply the merits criteria that apply to the form of service applied for. It does not impose a duty on the Director to identify or imagine what other forms of service might have been applied for by the applicant. The Claimant concedes that the natural reading of Regulation 12 does not require the Director to work through each and every form of civil legal service therein listed in determining every application for ECF. That is a necessary concession because otherwise an absurd obligation would be imposed to consider services which could not conceivably be in play in any given case.

[152]In seeking to make good their argument the Claimant is compelled to identify a relevance filter that must be applied to the list of forms of legal service. I have no difficulty accepting that there is indeed a relevance filter on the face of the Regulations. However, in my judgment the relevance filter that the scheme requires the Director to apply, is to determine the application that has in fact been made by the applicant in accordance with the Procedure Regulations. The obligation under Regulation 12 is no more or less complicated than that; the Director applies the merits criteria to the ‘relevant’ form of civil legal service, namely the one that has in fact been applied for.

[153]Does the statutory scheme place the Director under an obligation to grant the most generous form of legal service as an applicant might qualify for? In my judgment the submission made on behalf of the Claimant cannot be squared with the statutory provisions and I cannot accept Mr Habteslasie’s argument that this is a conclusion that can be drawn from the natural meaning of the word “qualify” as used in both Section 11 of LASPO and the Merits Regulations.

[154]The Director is obliged to discharge her functions independently in accordance with the Act but having regard to the directions and guidance of the Lord Chancellor. Neither the provisions of the Act itself, or the directions and guidance issued in furtherance of it, are concerned with ensuring that the Director grants the form of legal service that is the most generous or confers the greatest benefit to an applicant. To the contrary, the Act and the guidance are deliberately concerned with ensuring that the form of service granted is the most “appropriate.” That obligation is stated expressly in Section 11(4) of LASPO:

“(4) In setting the criteria, the Lord Chancellor must seek to secure that, in cases in which more than one form of civil legal service could be provided for an individual, the individual qualifies under this Part for the form of service which in all the circumstances is the most appropriate having regard to the criteria.”

[155]The Lord Chancellor does not have an unfettered discretion as to the content of the criteria. By Section 11(2)(a) the Lord Chancellor “must consider the circumstances in which it is appropriate to make civil legal services available under this Part” and by Section 11(2)(b) must “consider the extent to which the criteria ought to reflect the factors in subsection (3)”.

[156]It is helpful to set out that list of factors here and to consider them against the submission of the Claimant that the obligation on the Director is to grant the most generous form of legal service available in any case:

“(3) Those factors are— (a) the likely cost of providing the services and the benefit which may be obtained by the services being provided, (b) the availability of resources to provide the services, (c) the appropriateness of applying those resources to provide the services, having regard to present and likely future demands for the provision of civil legal services under this Part, (d) the importance for the individual of the matters in relation to which the services would be provided, (e) the nature and seriousness of the act, omission, circumstances or other matter in relation to which the services are sought, (f) the availability to the individual of services provided other than under this Part and the likelihood of the individual being able to make use of such services, (g) if the services are sought by the individual in relation to a dispute, the individual’s prospects of success in the dispute, (h) the conduct of the individual in connection with services made available under this Part or an application for such services, (i) the conduct of the individual in connection with any legal proceedings or other proceedings for resolving disputes about legal rights or duties, and (j) the public interest.”

[157]“Appropriate” plainly does not mean the most generous. It means the most appropriate service in the circumstances of an individual applicant having regard to the criteria set out in the Merits Regulations. Those Regulations are not concerned with ensuring that the Director grants the most generous form of legal service to an applicant. The statutory scheme, as Section 11(3) makes clear, is concerned with appropriateness, proportionality, cost and the allocation of resources. An obligation to grant the most generous form of civil legal service available in any case would be inimical to the balance struck by Parliament between ensuring access to legal services in a qualifying case and the stewardship of finite public resources.

[158]In conclusion in respect of Ground One and the arguments advanced on behalf of the Claimant I conclude that:(i) the statutory scheme does not impose a positive duty on the Director to consider forms of civil legal service that have not in fact been applied for;

(ii) the statutory scheme imposes no obligation on the Director to grant the most generous form of civil legal service to an applicant;

(iii) the Director’s duty is to determine the application made, while retaining a residual discretion (not a duty) to grant an alternative service;

(iv) Ground One is founded on a mischaracterisation of both the statutory scheme and the nature of the Director’s obligations under it and must be dismissed.

[159]I add finally that in the course of argument the Claimant sought to argue that the statutory duty to consider investigative representation arose on the specific facts of this Claim. It was asserted that the reasoning of the Director as expressed on 17th July amounted to a conclusion that the prospects of success were unclear such that investigative representation should then have been in play. That argument is itself not well founded for two primary reasons. First and factually, my reading of the Director’s decision is that she was doing no more than addressing the criteria for the form of civil legal service that the Claimant had applied for. Second, even if the reasoning did equate to a finding that the prospects of success were unclear, that did not trigger a statutory duty to consider investigative representation. I agree with the submission of the Defendant that this argument reveals that the Claimant’s case is in truth a rationality challenge to the decision of the Director to grant legal help as opposed to investigative representation. Ground 2 – Irrationality

[160]The Director (as I have found) was not under a statutory duty to consider the grant of investigative representation but did decide to exercise her discretion to grant an alternative form of legal service to the Claimant. This Ground proceeds on the basis that the Director acted irrationally by granting legal help rather than investigative representation. That submission depends on three core propositions, none of which I consider to be well founded:(i) That as a matter of fact the Director’s reasons for refusing full representation equated to a finding that the prospects of success were unclear;

(ii) That therefore the criteria for the grant of investigative representation were met; and

(iii) That legal help is a materially inferior form of civil legal service to investigative representation.

[161]As I have already observed I do not accept the Claimant’s argument on the facts that the decision as communicated on the 17th June amounted to a conclusion by the Director that the prospects of success were unclear. It was the expression of the conclusion that the criteria for the form of service applied for (full representation) were not met.

[162]In any event, the Claimant’s argument is predicated on the assumption that if the Director had concluded that the prospects were unclear a grant of investigative representation was the natural consequence of that conclusion. That submission ignores (as the Director pointed out the Claimant in her 20th September response) the remaining criteria in Regulation 40 of the Merits Regulations that must also be met before a grant of investigative representation could be made, in particular the requirements that:(i) The Director is satisfied that substantial investigative work is required before the prospects of success can be determined (Regulation 40(1)(a)); and

(ii) The Director has reasonable grounds for believing that the completion of the investigative work will result in the case satisfying the criteria for full representation (Regulation 40(1)(b)).

[163]I agree with the Defendant that on the facts of this Claim there was a lack of evidence on which the Director could have been satisfied of substantial work being required before the prospects of success could be determined. The Claimant’s focus on all of the work set out at Paragraphs 80 to 86 of the Statement of Case for ECF is misconceived. The Statement of Case is directed at the application made for full representation and accordingly upon the work that would be required to lodge and conclude a fully contested appeal against the CICA decision to the FTT. That was obviously a substantial amount of work, but that is not the same as a substantial amount of investigative work required before the prospects of success could be determined.

[164]As I have already observed, the important context of the Defendant’s decision to refuse full representation but to grant legal help was that this was not a final determination of his entitlement to civil legal services for all time. This was the grant of a service that would enable the Claimant’s representatives to complete the straightforward task of taking basic instructions that would enable the Claimant to particularise the threats he had been subjected to and enable him to re-submit his application for full representation.

[165]I also find well founded the Defendant’s submission that the Director did not have reasonable grounds for believing that the completion of investigative work would result in the prospects of success criteria for full representation being met. It was at best a possibility that they might have been, but equally it was possible that further investigation would not have materially advanced the Claimant’s prospects. This was at best a case of ‘maybe’ falling short of the reasonable belief that the Director would have required in order to grant investigative representation.

[166]In contrast to the Claimant’s inability to demonstrate that the full criteria for the grant of investigative representation were met, the criteria for the grant of legal help under Regulation 32 of the Merits Regulations were plainly met. Bearing in mind the statutory duty under Section 11(4) to ensure that the individual qualifies for the form of legal service that is the most appropriate having regard to the criteria, the Director’s decision to grant legal help cannot possibly be described as irrational.

[167]In any event the Claimant’s irrationality argument is also predicated on the basis that legal help is an inherently inferior form of legal service to investigative representation. In my judgment that submission is similarly flawed and does not withstand scrutiny.

[168]Investigative representation is, as the name implies, limited in scope to investigative work required to determine the strength of the contemplated proceedings by Regulation 18 of the Merits Regulations. Legal help in contrast, as the Lord Chancellor’s Exceptional Funding Guidance (Non-Inquests) makes plain, enables a range of services to be provided and “Legal Help can also be used to assist a client in setting out legal arguments for an appeal application (for example, to a tribunal)”. To the extent that investigative representation entitles a provider to issue protective proceedings on behalf of a claimant, there is no prohibition on the Claimant commencing tribunal proceedings under legal help.

[169]The primary ‘inferiority’ argument of the Claimant was that legal help does not entitle counsel to be instructed or for grounds of appeal to be settled. That submission is simply not sustainable. The 2024 Standard Civil Contract envisages that Counsel can be instructed under legal help and sets out the basis on which their fees should be paid. True it is that the provision of advocacy is not covered by the grant of legal help, but that does not prevent the instruction of counsel to provide advice and to settle grounds of appeal. As Regulation 2 of the Merits Regulations provides:

“‘advocate’ means a person who exercises a right of audience before a court, tribunal or other person;”

[170]The exclusion of “advocacy in proceedings” from legal help by Regulation 3 of the Procedure Regulations does not prevent the instruction of a person who has rights of audience. As I pointed out in argument to Mr Habteslasie, if his proposition to that effect was well founded, neither a solicitor nor a barrister could be instructed in any case given that both possess rights of audience. The exclusion is plainly on exercising rights of audience, not on instructing those who possess them.

[171]I further observe that on the facts of this Claim, it is difficult, if not impossible to see why the Claimant would have wanted to instruct counsel to exercise rights of audience at the point of the Director’s determination of the ECF application. The Director was simply inviting the Claimant to provide further instructions that might have made good the deficiencies in the original ECF application. Advocacy was not required to take that limited step. There is in any event no evidence at all that any person (counsel, solicitor or other representative) was unwilling or unable to assist the Claimant with taking the required steps under legal help who would have gladly provided that assistance under investigative representation.

[172]For all of these reasons I find that Ground 2 is advanced on a false factual premise and does not identify any irrationality in the public law sense, but rather a disagreement with the Director’s evaluative judgement as to the most appropriate level of funding at that stage. It is telling that the Claimant raised investigative representation with the Director for the first time after her decision on 17th June. I accept the submission made by Mr Howell that the reasoning provided by the Defendant in her correspondence of 20th September articulated with clarity why investigative representation was inappropriate and no error of law has been identified that vitiates those reasons.

[173]I stress again that this was not the final determination of funding entitlement in the Claimant’s case for all time. The Director envisaged that if the Claimant utilised the service that she had granted to good effect he would have been able to make a fresh application for full representation. It is unfortunate perhaps that rather than taking the basic steps required to take further instructions and seek to make good the deficiencies in the application for funding (and at the same time bolstering his prospects of a successful appeal to the FTT) the focus has instead shifted to this lengthy, expensive and misconceived public law challenge.

[174]I add finally that if my conclusion that the Director’s failure to consider investigative representation on the 17th June was lawful were to be in error, I would have refused relief pursuant to Section 31(2)A of the Senior Courts Act 1981 in any event given the communication from the Director of the 20th September 2024 which contained no error of law. Ground 3

[175]I have no hesitation in dismissing this ground on the basis that it is entirely academic. As the Claimant concedes, even if the claim of unlawful delay was well founded, it does not provide any basis for the Court to quash the Director’s decision. I find myself in agreement with the submissions of the Defendant that the relief sought by the Claimant, namely the recording of a finding of unlawful delay in the course of this judgment, is of no practical advantage to the Claimant whatsoever.

[176]The Claim under this Ground does not directly affect the rights and obligations of the parties, and there is no good reason in the public interest to determine it (applying the principles explained by the Court of Appeal in R (L) v Devon County Council). The Claimant’s argument on delay is entirely fact specific, and no issue of wider principle is engaged by it.

[177]I am not in any event persuaded that the facts reveal delay that could come close to being declared unlawful by the Court. As Collins J observed in FH at [30]:

“It is only if the delay is so excessive as to be regarded as manifestly unreasonable and to fall outside any proper application of the policy or if the claimant is suffering some particular detriment which the Home Office has failed to alleviate that a claim might be entertained by the court.”

[178]The initial decision was taken within 42 working days and the time taken cannot sensibly be criticised. The proper total period of time for consideration of delay in the context of the review request is between 27th September 2023 and 17th June 2024 (the review decision was communicated on that date, and the Director became functus officio on that basis it would be wrong to have any regard to subsequent correspondence culminating in the 20th September 2024 letter).

[179]Whilst it might be described as sub-optimal for the review to have taken 181 working days to conclude not all of that period of time can be attributed to delay for which the Defendant was responsible. The Claimant accepts that the Defendant was entitled to request the advice given to the Claimant in civil proceedings on 21st November 2023, and that advice was not provided until 25th March 2024.

[180]There were undoubtedly points at which communication might have been timelier and requests for additional information could have been made earlier in the review process, but viewed as a whole, this was a review request that was complex, requiring careful consideration by the Defendant over time, as requests for further information were made and then answered. On its facts this is not a case that comes even close to clearing the high bar that is set in order to establish that there has been unlawful delay.

[181]In conclusion this Ground is dismissed on the basis that it is entirely academic, but in any event, I do not consider the allegation of unlawful delay to have been well founded on the facts. Ground 4

[182]As Mr Habteslasie conceded in the course of argument, Ground Four is not a free-standing Ground of challenge and falls away if Grounds One and Two fail. Given my decision in respect of Grounds One and Two, Ground four is unarguable and permission is therefore refused.

[183]I further observe that this additional Ground added nothing of substance to the Grounds in respect of which permission had been granted by Lang J, and I would have refused permission on that basis in any event.

(b) ’

[184]The central issue in the Claimant’s proposed appeal to the FTT was whether he was able to establish that he was the victim of a crime of violence. To establish that he was, he had to bring himself within Paragraph 2 of Annex B of the Scheme. It is absolutely plain, from the submission to the CICA and to the Director in the ECF application, that the Claimant’s case was that he came within both Paragraphs 2(1)(b) and 2(1)(c) of Annex B.

[185]Under 2(1)(c) he claimed to have been the subject of threats that had caused him a fear of immediate violence making him the victim of a common assault as explained by the Court of Appeal in RN. The Director plainly applied her mind to Paragraph 2(1)(c) when making her decision and the Claimant does not argue otherwise.

[186]To come within Paragraph 2(1)(b) the Claimant had to establish that he had sustained a physical injury as the result of an act or omission of a violent nature. The only physical injury that he had ever particularised, in either his claim to the CICA or in the documentation submitted to the Director, was the injury he sustained when he fell from a ladder.

[187]The issue, both in the appeal to the CICA and in the application for ECF, was whether it could be established that the ladder injury was sustained as the result of an act or omission of a violent nature. If it was then the Claimant was prima facie within the Scheme. The alternative was that it was a pure accident, and indeed the CICA had rejected the claim for compensation on that basis stating that “this appears to have been an accident and there is nothing to suggest there was an act or omission of a violent nature with an intent to cause a physical injury”.

[188]It is unfortunate that the CICA decision maker (wrongly) conflated intention to cause physical injury with whether or not there was an act or omission of a violent nature, but for the purposes of this Ground that is irrelevant. The core issue remained was this injury sustained due to an act or omission of a violent nature or was it a pure accident?

[189]That is the crucial issue because a pure accident would plainly not fall within Paragraph 2(1)(b) regardless of the wider context in which the accident occurred (as explained in R (Criminal Injuries Compensation Authority) v FTT. Conversely, an injury sustained in a fall from a ladder that was brought about (recklessly or intentionally) by an act or omission of a violent nature plainly would. An act or omission of a violent nature could conceivably take many different forms. Here the Claimant did not assert that he climbed the ladder as the direct result of a physical assault or in order to escape an ongoing physical attack. Had he done so he would have not been injured accidentally when he fell but as the result of an act of a violent nature. The criminal law would deem injuries sustained in that way as an assault with the precise offence committed determined by the level of injury sustained and whether the injury had been caused intentionally or recklessly.

[190]Rather, the Claimant’s case appears to be that the ladder incident fell within Paragraph 2(1)(b) as a result of his climbing the ladder only because he was compelled to do so because of a fear of violence that would follow if he did not accede to the demand. On that basis it is at least arguable that the ladder incident might come within Paragraph 2(1)(b) of Annex B. But whether it did or not would depend upon the nature of the demand that he should climb the ladder and how he says that gave rise to a fear of violence should he fail to comply.

[191]If the demand that was made amounted to a threat that if he did not scale the ladder he would then and there be subjected to violence, then he would have been subject to an assault as explained in RN. In those circumstances it seems to me that the injury he sustained when he fell would be the result of an act or omission of a violent nature.

[192]Therefore the crucial issues to be resolved before it could be decided whether the Claimant’s ladder injury could be brought within Paragraph 2(1)(b) were - both at the time of the ECF application and now - what demands were made, by whom, with what proximity to the scaling of the ladder and with what implied consequence for non-compliance? In that context is the Claimant’s proposed Ground that the Director failed to have regard to Paragraph 2(1)(b) and only had regard to Paragraph 2(1)(c) arguable?

[193]In my view the proposed Ground Five is not only unarguable, it is based on a wholly artificial construct of the Director’s decision that ignores the fact that the nature of any threats issued to the Claimant by his traffickers was relevant not only to Paragraph 2(1)(c) but also to Paragraph 2(1)(b). That is because threats had the potential to convert what otherwise would be a pure accident into an injury that had been sustained as a result of an act or omission of a violent nature.

[194]The internal records of the Defendant make it absolutely plain that the ladder incident was a central consideration in her decision making. Indeed the ladder incident was described as the “main” incident with which the Director was concerned and the focus of the Director’s communications with the Claimant prior to the decision on the 17th June was in seeking to elicit from the Claimant clarity as to the threats that he asserted he had been subjected to as would be required to establish a finding that he had been the victim of a crime of violence. That request for further particulars was just as relevant to Paragraph 2(1)(b) as it was to Paragraph 2(1)(c). The reasoning of the Defendant for refusing the application for full representation is also of equal application to both Paragraphs.

[195]As the summary of the facts in this Judgment reveals, the Claimant’s account of the ladder incident, his reasons for scaling the ladder, and the threats to which he said he had been subjected as compelled him to do so, had not been clearly articulated. It might also be said that the factual representations about the ladder incident had varied over time. It was unsurprising that the focus of the CICA, and indeed of the Director, was on those threats and whether they were capable of bringing the ladder incident within Paragraph 2(1)(b) of the scheme.

[196]In conclusion this proposed Ground is as unarguable as it is misconceived and permission is refused. Conclusion

[197]For the reasons that I have given the Claim as advanced in the three Grounds in respect of which permission had been granted is dismissed. In respect of the two additional grounds which the Claimant sought to argue, permission is refused.