(Queen's Bench Division, Holman J, 29 July 2013)
The 21-year-old man suffered from hydrocephalus and had considerable, life-long mental and physical impairments. He resided in a local authority residential home. In proceedings in the Court of Protection the mother, father and brother now sought for him to move to live with them in the family home.
The mother was not eligible for legal funding due to her owning her own home in respect of which she had equity in excess of the £100,000 threshold. The brother, however, was a student in receipt of a student loan and funding. There was no evidence he possessed any significant capital nor that he would be ineligible for legal funding. The mother and brother were joined as parties to the proceedings and the judge made it clear that both of their cases in relation to the man were the same.
The Legal Aid Agency refused the brother funding and the family sought judicial review of that decision. The mother submitted that the equity which financially disentitled the mother to public funding was the equity in the very house which she had adapted for his care needs and which the family wished him to return to.
It was not possible to say that although the mother was outside the financial eligibility criteria that she could not reasonably be expected to bring or fund the case. It did appear that the brother being joined to proceedings was a device with the view to obtaining funding. That was not to say that he did not have a sincere and legitimate interest in decision-making in relation to his brother or that it was inappropriate that he be a party to the proceedings. But, he could not surmount the hurdle that there was another person who could reasonably be expected to bring or fund the case, namely his mother. Her interest was at least as great as his, and the fact was that she did have the capital at her disposal. The decision reached by the Legal Services Commission in their decision letter was not even arguably wrong.