Upper Tribunal procedure – costs – summary assessment – rule 10(1)(b) of the Tribunal Procedure (First-tier Tribunal) (HESC) Rules 2008 – whether inter partes costs payable to a party funded through the legal help scheme
The appellant had appealed against her child’s Education, Health and Care Plan for which she had received public funding under the legal help scheme. Under the terms of the Contract awarded to them by the Legal Aid Agency her legal representatives’ work fell within the definition of controlled work (not licensed work). Her representatives applied under rule 10 of the Tribunal Procedure (First-tier Tribunal) (Health, Education and Social Care Chamber) Rules 2008 for £19,113 for disbursements (expert fees) and profit costs assessed at inter partes rates from 9 June 2015, on the basis that the local authority had acted unreasonably in defending the proceedings from that date. A First-tier Tribunal judge (Judge B) ordered the local authority to pay 75 per cent of those costs. A second First-tier Tribunal judge (Judge C) set aside Judge B’s decision on the grounds that there had been a procedural irregularity and determined that the local authority had acted unreasonably from 24 February 2016, assessing the costs as £1,636.85 on the basis that regulation 15 of the Community Legal Service (Costs) Regulations 2000 (for which read regulation 21 of the Civil Legal Aid (Costs) Regulations 2013) did not apply to work undertaken under the legal help scheme and accordingly the appropriate rate was less than the representative’s assessment. The appellant appealed to the Upper Tribunal against that decision, arguing that Judge C had erred in law in holding that inter partes costs could not be awarded to a party funded through the legal help scheme.
Held, allowing the appeal, that:
in the event of a costs order being made in favour of a legally aided party, the amount of costs to be paid under that order should be determined as if that party were not legally aided, irrespective of whether the work claimed for was controlled or licensed work (paragraph 22);
First-tier Tribunals should apply considerable restraint when considering an application under rule 10 and orders should be the exception, not the rule, and made only in the most obvious cases, thereby ensuring that proceedings were as brief, straightforward and informal as possible and that parties were not deterred from bringing or defending appeals (paragraphs 26 to 27);
(obiter) the proper approach to be taken by a First-tier Tribunal when assessing the amount of costs under rule 10(1)(a) was to follow a three-stage process: (1) did the party against whom an order for costs is sought act unreasonably in bringing, defending or conducting the proceedings? (2) if it did, should the tribunal make an order for costs? and (3) if so, what is the quantum of those costs? The Judge provided detailed guidance for each stage of that process (paragraphs 28 to 42).
The Upper Tribunal set aside the F-tT’s decision and re-made it, ordering the respondent local authority to pay the appellant the sum of £4,474.56 within 28 days of the date of its decision letter.