Case No: CO/3527/2013
Neutral Citation Number: [2013] EWHC 960 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT

Royal Courts of Justice
Strand, London, WC2A 2LL

Date: 26 April 2013

Before:

Mr Justice Collins
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Between:

	The Queen on the application of T
(Guardian Sue Clarkes & Litigation Friend)	Claimants	
	- and -		
	Legal Aid Agency 
(Formerly Legal Services Commission)
- and -
London Borough of Ealing
The Parents of T1 – T6	Defendant

Interested Parties 	

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Adam Tear, Solicitor Advocate (instructed by Duncan Lewis, Solicitors) for the Claimants
Barbara Hewson, Counsel (instructed by Legal Aid Agency) for the Defendant 
George Butler (instructed by London Borough of Ealing) for the Interested Party 
Hearing dates: 17 April 2013

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Judgment
Mr Justice COLLINS : 
1.	The claimants are the six children of Mr & Mrs T, the second and third Interested Parties.  All the children are under 11.  The parents are of Bangladeshi origin but the family lives in this country.  Following concerns expressed to it, the London Borough of Ealing (LBE), the 1st Interested Party, carried out investigations as a result of which on 22 September 2012 all six children were removed from their parents’ care and have been since in foster care.  Unfortunately, they have had to be separated since it was not possible to place all six together.  Arrangements have been made for contact with their parents for relatively short periods during each week.
2.	On 4 October 2012 the LBE commenced proceedings for care orders in respect of the children.  One child was made a ward of court because she had been taken to Bangladesh, but in due course she was collected by her mother and has been returned to this country.  The proceedings are being carried on in the Principal registry of the Family Division.  At the first hearing on 10 October 2012 the judge stated that the best interests of the children would be met by a timetable which involved the completion of the case within 26 weeks with a final hearing no later than 5 April 2013.  The case was then allocated to District Judge Gibson.  Because one child was still in Bangladesh, she varied the timetable to 32 weeks with a final hearing on 15 May 2013. She also indicated that there was in her view a need for a multi-disciplinary assessment.  On 9 November 2012 District Judge Gibson gave permission to instruct a named adult psychologist to report on the parents, and to instruct the Marlborough Family Service (MFS) to carry out a multi-disciplinary assessment of the parents and children.  The psychologist was to be instructed by the solicitors acting for each of the parents and MFS by the solicitors acting for the children.  District Judge Gibson indicated that the letter of instruction should be sent by 12 November 2012.  The issues, which the letter should identify were:-
“(a) (i) The attachment between the parents and the children
(ii) The parents’ capacity to meet the needs of the children.”
District Judge Gibson continued:-
“(b) the proposed assessment and report are necessary to the resolution of this case for the following reasons: a multi-disciplinary assessment is necessary for the court to determine whether the parents are able to meet the children’s needs.
(c) this case is exceptional on the facts because there are allegations of neglect in respect of six children under 10 years
(d) the costs to be incurred in the preparation of such report shall be paid by the parties in equal shares and are wholly necessary, reasonable and proportionate disbursement on the funding certificates of the publicly funded parties in this case
(e) the court considers the hourly rate of £90 to be reasonable in the context of their qualifications, experience and expertise.
(f) the field in which this expert practises and the particular expertise which they bring to bear on this case is highly specialised.  There is no realistic prospect of finding an alternative expert with the necessary expertise at a lower fee.
(g) the issues in this case are not appropriately addressed within the evidence before the Court.”
3.	The letter of instruction was duly sent to MFS.  MFS is well known to Family Division judges and is able to provide the necessary services as District Judge Gibson records.  MFS set out the work which it believed to be necessary at the rates per hour which are laid down by Parliament in Regulations to which I do not need to refer.  The material amounts were £90 per hour.  A certain figure was not provided: until work began, it would not be possible to decide how much time was needed.  Accordingly, in respect of some areas of work, minimum and maximum figures were set out.  The overall maximum was £31,650 and the minimum £23,550.
4.	Matters were unfortunately delayed due to difficulties in relation to the provision of legal aid for the parents and it was not until 14 February 2013 that the case came before District Judge Gibson for further directions.  By then, an amendment to the Family Procedure Rules 2010 had produced a new Rule 25.1 which provides:-
“Expert evidence will be restricted to that which in the opinion of the court is necessary to assist the court to resolve the proceedings.”
District Judge Gibson was therefore required to consider whether the instruction of MFS was necessary.  None of the parties before her, including LBE counsel for whom attended the hearing before me to support the claimants’ claims, dissented from the view that the instruction of MFS was necessary but it was incumbent on her to satisfy herself that this was indeed the case.
5.	Having expressed her concern at the delays to commencing assessments caused by the difficulties for the parents securing public funding from the defendants, District Judge Gibson’s findings were as follows:-
“a) The following issues require expert assessment and shall be included in the letter of instruction
i.	The attachment between the parents and the children
ii.	The parents’ capacity to meet the needs of the children
b) the proposed assessment and report are necessary to the resolution of this case for the following reasons: a multi-disciplinary assessment is necessary for the court to determine whether the parents are able to meet the children’s needs.
c) this case is exceptional on the facts because there are allegations of neglect in respect of six children under 10 yrs
d) the costs to be incurred in the preparation of such report shall be paid by the parties in equal shares and are wholly necessary, reasonable and proportionate disbursement on the funding certificates of the publicly funded parties in this case
e) the court considers the hourly rate and the estimate of £31,650 to be reasonable in the context of their qualifications, experience and expertise.
f) the field in which this expert practises and the particular expertise which they bring to bear on this case is highly specialised.  There is no realistic prospect of finding an alternative expert with the necessary expertise at a lower fee.
h) the issues in this case are not appropriately addressed within the evidence before the Court.

10. The applications for prior authority for both the Marlborough Family Centre and Dr Halari shall be submitted or resubmitted by 4pm on 18.02.13.  If by 4pm on 25 February 2013 the Legal services Commission has either refused or not responded to the application for prior authority, liberty to the solicitor for the children to notify the court and seek an urgent directions hearing on 48 hours notice. A representative from the Legal services Commission is directed to attend this hearing to explain why public funding is not available to cover these assessments as directed by the court.”
6.	The defendant’s initial response to the request for prior approval was to allow only a total of 131 hours on the ground that ‘the parenting/family meetings appeared to be residential assessments and therefore outside the scope of legal aid’.  This was an error but, following paragraph 10 of District Judge Gibson’s order of 14 February 2013, the matter was brought back to her on 19 March 2013.  No representative of the defendant attended.  She expressed her concerns about the delays caused by the refusal to give prior authorisation to the funding for the assessments which she was satisfied were necessary and noted that this claim for judicial review was to be lodged.  She also recorded that the defendant had failed to attend having previously been directed to do so.  It seems from what I was told that the defendant has made a policy decision not to attend following every such request since there are a significant number of them and there is not sufficient manpower available to meet them.  However, it is prepared to discuss matters with a judge over the telephone.  This for obvious reasons is hardly a satisfactory arrangement.
7.	On 19 March 2013 the defendant gave its amended and final decision.  It accepted that 120 hours was not for residential assessments and so was within what should have been allowed.  The letter read as follows:-
“I refer to your e-mail of 18th March in relation to the Marlborough Multi-disciplinary assessments of the [T] family.  You confirmed that the family assessment of twenty days was not a residential assessment and on that basis the 120 hours has been added to the original prior authority.  The new global figure allows 251 hours with a total cost of £19,170 of which a quarter share amounts to £4,792.50.  A prior authority of this amount has been issued against the above certificate and those of [the parents].
Of the original 131 hours allowed twenty hours represented the independent social worker rate of £33 per hour.  Of the 120 hours allowed for the twenty day family assessment two thirds (80 hours) was at the psychiatrist/psychologist rate (£90 per hour) and one third (40 hours) at the independent social worker rate.  As the Marlborough were unable to estimate a breakdown to assist in calculating the cost of this work, the writer divided the time equally between the three participant experts.
I trust you will forward this information to the opponent’s solicitors.
I explained in my letter of 25th February that the prior authority binds only the commission.  If the expert exceeds the hours allowed under the prior authority, you are able to put an explanation to justify the excess hours at the billing stage.”
The total approved of £19,170 is less than the minimum sum assessed by MFS.
8.	This claim was lodged on 22 March 2013, following MFS refusal to do the work unless funding was in place.  MFS explained why in an e-mail to the claimants’ solicitor in which it said;-
“Sadly I feel as though I am having to endlessly repeat myself.  However, I will reiterate again as highlighted in bold on page 3 of the Service Agreement (SA) sent to you, there will be no further negotiations on fees.  I have already explained that we are running at a loss, having to charge half of our original fees, and that our NHS Trust will not tolerate further reductions, or acceptance of protracted complications caused by the changes within the LSC and the inconsistencies in how each case appears to be managed.
There is clearly a much wider and significant issue here that needs to be addressed, in particular the impact these delays are having on vulnerable/at risk children and families, a situation which is completely out of our hands.
For the purposes of further clarity and in order to conclude this matter I will explain for a final time the following.  We are only ever able to offer external assessments when;
a)	based on the suitability of each case
b)	when we have availability
c)	subject to referral processes being completed within a suitable timeframe, i.e. funding is in place.
It is totally unacceptable that we are approaching the 5 month stage since the SA was sent.
I understand that Ealing SSD will or is already part of the expanded Care Proceedings Pilot.  I can only hope that this might put some pressure on the judges in terms of how they manage the LSC in the future.
Whilst appreciating how hard you have worked on this referral I had already indicates to you that this case could no longer remain on our waiting list, and unfortunately in light of the above I am confirming that this referral is now closed to our service.”
On 28 March 2013 Foskett J directed that there should be a ‘rolled up’ hearing in the week commencing 15 April 2013 and that the defendant should serve a skeleton argument by 4 pm on 11 April 2013.  He chose the week commencing 15 April 2013 because he considered that this claim should be dealt with by a Family Division judge and one was due to sit in the Administrative Court during that week.  Unfortunately as matters have turned out I have been allocated this claim albeit I am not a judge who has a family law background.  Nonetheless, the issues raised are involving as they do prior authorisation of experts, not peculiar to the Family Division albeit, as this case shows, they are more acute in cases involving children and their future care and are likely to arise with greater frequency in such cases.
9.	I decided that permission should be granted.  Accordingly, subject to the obligation on the claimants to pay the fee due on grant of permission, I have waived all further procedural requirements and this judgment is the determination of the claim.
10.	The problems created by the defendants’ approach to prior approval of funding for experts in child care proceedings have recently been considered and guidance has been given by Sir Nicholas Wall, P in A Local Authority v S & others [2012] 1 WLR 3098.
The head note helpfully summarises the conclusions of the President and reads, so far as material, as follows:-
“A court considering whether to order the preparation of an expert report in care proceedings will have to decide, in accordance with the imminent amendments to FPR r 25.1, whether the report is “necessary” rather than “reasonably required” for the resolution of the case.  Advocates should therefore explain to the court why a particular expert is required but the responsibility for making the order is that of the court and not the parties.  The court should give its reasons for making an order and identify the issues on which it wants the expert to report.  The instruction of an expert should not delay the progress of a case unless that is unavoidable (post, paras 15, 44, 45 46).
Applications by publicly funder parties to the Legal services Commission for prior authority for funding of expert evidence in care proceedings should be made at the earliest opportunity, be carefully drafted and be supported by reasons.  Urgent cases should be so marked and the reasons for urgency explained.  The commission should deal with applications promptly and, where it refuses funding or grants it to a limited extent, give reasons for doing so.  If the commission’s exercise of its power, to refuse to fund the instruction of an expert, to fund it in part only and/or to cap the level of fees which may be expended by the expert at a given level, is manifestly unreasonable or can be struck down for any other public law reason, the remedy is a claim for judicial review.”
The ‘necessary’ test foreshadowed in the decision is now in force.  The President noted that to a lawyer it ‘remains curious that an administrative body can effectively render nugatory a judicial decision taken in what the court perceives as the best interests of a child’.  However, it is clear that the defendants do have the power since public money is at stake to refuse to fund or to fund in part only.  The President stated that the remedy for practitioners was judicial review of the defendant’s decision if, of course, there were grounds for believing the decision was unlawful.
11.	The defendants relied heavily on the final paragraph of the letter of 19 March 2013 in that it would be open to the claimants’ solicitors to persuade it to agree to pay any amount above that granted by way of prior approval.  Mr Tear, who has argued the claimants’ case as a member of the firm of solicitors who are responsible for paying MFS’s costs, has submitted that that is totally unrealistic. No firm of solicitors for publicly funded clients whose margins are very tight could run the risk of having to pay sums which might not be recoverable.  He drew attention in addition to Section 11 of the defendants’ Costs Assessment Guidance which, he submitted, indicated that no sum could be paid if it exceeded the Costs Limitation applied to the solicitors engagement in the case.  Amendments can be sought to increase the limitation at any time before the conclusion of the case.  The final assessment is binding but I was assured by Ms Hewson on specific instructions that such an amendment can be made at any time before the final claim for payment is made if there is any increase in fees payable to experts (or to anyone properly instructed) which only became known at a later stage.  It would obviously be unreasonable if the guidance were construed otherwise.
12.	It must be recognised that the defendant is entitled to question and if persuaded that the payment for which approval is sought is excessive to refuse to accept it.  But it must act in a reasonable way.  The President gave guidance in the S case in Paragraph 45.  He noted that the Court, not the parties, was responsible for making an order that experts be instructed and it was for the court to give reasons why such an order should be made.  The parties’ agreement to the making of such an order does not relieve the judge of the obligation to decide for himself or herself whether such an order is necessary.  That will inevitably include consideration of the issues which have to be addressed and so a view should be formed as to the apparent reasonableness of the hours said to be required and the level of expertise needed for those who are to do the work.  No doubt experienced family judiciary will have their own knowledge of many experts who are regularly instructed in child care cases.  The need for the judge to give reasons is emphasised by the President in Paragraph 45(5).  In 45(6) he says this:-
“’Reasons’ in circumstances such as these need not be lengthy or elaborate.  They must however explain to anyone reading them why the decision-maker has reached the conclusion he or she has particularly if the expert is seeking to be paid at rates which are higher than those set out in the table in Schedule 6 to the Funding Order.”
In this case MFS have not sought to exceed those limits.  Indeed, as the email I have already referred to makes clear, those limits mean that there is a real reluctance to engage in the work unless payment is assured.
13.	In Paragraph 45(7) the need for speed in dealing with children cases is emphasised.  I should set out Paragraph 45(8) since it is most important in indicating what in the President’s view the defendant’s approach should be.  He says this:-
“(8) By like token, it behoves the LSC to deal with such an application promptly and, particularly if the application is being refused, or only granted to a limited extent, to give its reasons for its decision.  Once again, the reasons can be concise.  Of course, the solicitor seeking prior authority can go ahead regardless, and instruct the expert at the rate the expert demands, but such a suggestion, in reality, is unreal.  The expert’s contract is with the solicitor and if he or she does not recover the expert’s costs from the LSC, it is the solicitor who is liable.  Given the exiguous rates of remuneration, this is a risk no solicitor is willing to take, particularly where the client is impecunious.”
14.	I echo and endorse what the President there says.  While there is no statutory requirement for reasons to be given by the defendant, the law has developed to require reasons where fairness so dictates.  Cases such as these where children may be removed from parental care involve Article 8 of the ECHR and the welfare of the child which is paramount.  There is an obvious requirement that all proper steps are taken to enable a judge to reach an informed decision when dealing with those rights.  The parties and the court are in my view clearly entitled to understand why a refusal to allow what the court has considered necessary has been made so that it can, if appropriate, be challenged speedily.
15.	The letter of 19 March 2013 gives no reasons to explain why the full sum put forward is not approved.  Since the defendant appeared through its representative, Mr Michael Rimer, at the hearing of S it was clearly aware of the President’s guidance.  Guidance in this field from so authorative source as the President, in a reserved judgment after hearing submissions from, amongst others the LSC, gives rise to a public law duty upon the LSC, capable of being enforced, as the President said, by judicial review.  Ms Hewson has sought to rely on the real difficulties faced by the defendant in dealing with the increasing number of applications for prior approval.  In the S case it had been shown that following the new funding order in October 2011 introduced as part of the legal aid reform programme designed to save costs applications for prior approval of experts increased from 216 in November 2011 to 1855 in April 2012.  That increase has, I was told, continued.  Ms Hewson said that 4 employees in an office in Wales now had to deal with some 100 applications each week.  That I suspect was something of an exaggeration but the point she was seeking to make was that the burden on those responsible for making the decision was such that they did not have the time to enter into any discussion nor to give any substantial reasons.  Attempts to save costs in one way can have an effect which increases costs in another.  If as a result of the new rules introduced in October 2011 greater pressure is imposed resources must be provided to meet that pressure.  In R(H) v Ashworth Hospital Authority [2003] 1 WLR  127 at paragraph 76 Dyson LJ said this:-
“I absolutely reject the submission that reasons which would be inadequate if sufficient resources were available may be treated as adequate simply because sufficient resources are not available.  Either the reasons are adequate or they are not and the sufficiency of resources is irrelevant to that question.”
These observations apply a fortiori where there is an absence of reasons when reasons are required.
16.	It is also important for the expert to explain why the work which will be charged for is needed, particularly if, as here, the overall figure is large.  Those instructed to do work in publicly funded cases must recognise that they will be asked for such explanations and so should spell out in sufficient detail, which need not be extensive, why the work regarded by them as necessary will be needed.  It may be obvious in some cases and no more than an indicator of the anticipated hours within a bracket for a particular piece of work may be needed.  The scope of the assessment required should be identified in the instructions based on what the judge has decided is necessary and so the need for detailed explanation may be lessened since it will be based on what is required.
17.	District Judge Gibson said that a representative of the defendant should attend to explain why approval was not given.  It is clearly important that claims for judicial review should be avoided if that is at all possible.  Apart from any other circumstances, such claims if properly brought are likely to require legal aid to be granted and so there is further expense which will fall on the defendant.  Now that the instruction of experts can only follow if a judge so orders because he or she is satisfied and gives reasons for being satisfied that it is necessary it seems to me that the defendant should only refuse to give prior approval if it has very good reasons so to do.  While the judge’s decision is not binding, it must carry very considerable weight.  If there is good reason to reject it in whole or in part the defendant should engage with the court.  This can I suspect be dealt with in many cases in writing. If the judge, having considered the defendant’s representations, maintains his or her decision it is difficult to see how a continued refusal to give effect to it could be other than unreasonable. In some cases oral representations may be considered necessary.  If the defendant is prepared to engage in this way extra costs will be avoided and it seems to me to be an entirely reasonable way of dealing with the problem.  Where, as here there is a bracket, it is difficult to justify approval of a lesser sum than the maximum (assuming the proposed work seems overall to be needed) since, if less than the maximum is carried out, payment cannot be sought for more than is done.  It is suggested anecdotally that the lowness of the hourly rates allowed has meant that longer hours are unnecessarily spent.  I have no evidence to support that suggestion and MFS are not said to be or to have ever been likely to be involved in such practices.
18.	Ms Hewson has suggested that, since MFS has said that it will not accept instructions, this claim is academic.  That is a singularly unimpressive submission and in any event Mr Tear tells me that provided there is prior approval for their fees to be paid they will accept instructions.  She further submits that no further information has been provided to the defendant to justify the amounts claimed.  This could, she submits, have been done.  This does not fit in well with her picture of the impossible burdens on those who have to deal with these applications but the defendant could have engaged with District Judge Gibson and not simply ignored her requirement that someone on its behalf attend before her. 
19.	It may be that the pressure on the defendant created by the increase in applications for prior approval of payments to experts will reduce in the  light of Sir James Munby, P’s recent observations that the use of experts should be modified.  Judges dealing with these cases now have to be satisfied that any expert evidence is necessary and no doubt they will bear in mind that even if it is its extent should equally be only such as is necessary.  Ms Hewson suggested that MFS was providing a Rolls Royce service and that such a service is no longer appropriate. But that is merely an assertion.  The obligation on judges to give reasons why any particular expert evidence is needed will also help to limit such applications and the reasonableness of any refusal by the defendant.
20.	Mr Tear has asserted that the failure by the defendant to serve a skeleton argument in time was a contempt and that some sort of punishment, perhaps by refusing to hear argument, should follow.  He has also sought to claim damages.  He has, I am afraid, taken an unreasonable approach in those respects; however, I am satisfied for the reasons given that the decision of the defendant was wrong in law.  Reasons have not been given.  This might not have led to any relief beyond a declaration if I were persuaded that the only result could be that the decision was confirmed.  Not only am I not so persuaded but I find it difficult to see that it would be reasonable, at least without engaging with the judge whether in writing or orally, to fail to comply with what she has decided is necessary.
21.	It follows that the decision of 19 March 2013 must be quashed.