C (Lay Advocates) (No.2) Secretary State For Justice v A Local Authority & Ors

Factual and Procedural Background

This judgment follows a prior judgment given on 13th December 2019 concerning the funding of lay advocates for parents with intellectual impairments in public law proceedings. The court had previously determined that lay advocates, who assist parties in understanding and participating effectively in court proceedings, should be funded similarly to interpreters and intermediaries. An order was made for Her Majesty's Courts and Tribunals Service (HMCTS) to pay for lay advocates for both parents, based on an agreement communicated by a regional budget manager.

Subsequently, on 13th March 2020, the Secretary of State for Justice (SSfJ) applied to vary this order. The application arose after the Legal Aid Agency (LAA) refused prior authority requests for funding lay advocates outside court, asserting that lay advocates do not form part of legal representation and therefore their costs cannot be funded as civil legal aid. The court heard submissions and considered correspondence revealing uncertainty about the role and funding responsibilities for lay advocates between HMCTS and the LAA.

Following negotiation and partial agreement between the parties, the court was asked to vary the earlier order to clarify that HMCTS funds lay advocates at court hearings, while the LAA funds lay advocates assisting communication between clients and solicitors outside court, subject to justifiable and reasonable disbursement criteria.

Legal Issues Presented

1. Whether HMCTS is required to fund lay advocates for parties with intellectual impairments both in court and outside court proceedings.
2. Whether the LAA can fund lay advocates assisting communication between clients and their solicitors outside court as part of legal representation under civil legal aid.
3. The proper definition and role of a lay advocate in the context of court proceedings and legal representation.

Arguments of the Parties

Secretary of State for Justice's Arguments

• The regional budget manager erred or miscommunicated in agreeing that HMCTS would fund lay advocates both in court and out of court.
• HMCTS cannot be required to fund lay advocates outside court appointments with solicitors.
• The role of a lay advocate is not part of legal representation and therefore funding for out-of-court assistance should be a matter for the LAA, subject to their criteria.
• Clarification was sought on the role of lay advocates, distinguishing them from McKenzie Friends and intermediaries.

Other Parties' Positions

• There was a measure of agreement that lay advocates should be funded by HMCTS at court hearings.
• Funding for lay advocates assisting communication outside court should be subject to the LAA’s assessment of whether the disbursement is justifiable and reasonable within legal aid representation.
• Costs already incurred for lay advocates at hearings should be paid by HMCTS.

Table of Precedents Cited

No precedents were cited in the provided opinion.

Court's Reasoning and Analysis

The court began by reaffirming its prior judgment that lay advocates play an essential role in enabling parents with intellectual impairments to participate effectively in public law proceedings, thus safeguarding their Article 6 rights. It acknowledged that the initial order was based on an agreement from the regional budget manager and did not constitute a formal decision requiring HMCTS to fund lay advocates outside court.

The court carefully considered the submissions and correspondence which revealed confusion about the lay advocate's role and which public body should be responsible for funding. It clarified that a lay advocate is distinct from a McKenzie Friend and an intermediary, acting to assist and support a party with intellectual impairments both in court and out of court to understand and respond to information.

After hearing the parties’ arguments and noting substantial agreement, the court approved a consent order delineating that HMCTS funds lay advocates at court hearings, while the LAA funds lay advocates assisting communication outside court, subject to the LAA’s assessment of justifiability and reasonableness of such costs as disbursements within legal representation. The court also ordered that HMCTS pay the costs of lay advocates to date.

Holding and Implications

The court VARIED its previous judgment and order of 13th December 2019 as follows:

• HMCTS shall fund the provision of lay advocates for parties at court hearings in appropriate circumstances.
• The LAA shall fund lay advocates who assist parties in communicating with their solicitors and/or counsel outside court, provided the LAA is satisfied that such funding is a justifiable and reasonable disbursement within legal aid representation.
• HMCTS shall pay the costs already incurred for lay advocates at hearings.

The decision clarifies the respective funding responsibilities of HMCTS and the LAA regarding lay advocates, ensuring parties with intellectual impairments receive necessary support to participate effectively in proceedings. No new legal precedent was established beyond the application of existing principles to the funding framework.