Is there a duty to consider granting legal aid in a form that has not been applied for?

07/05/26

Civil legal aid is provided in a number of different forms. If an individual applies for legal aid in a particular form and the Director of Legal Aid Casework (“the Director”) concludes that they are not entitled to legal aid in that form, is the Director nonetheless under a duty to consider whether the applicant is entitled to another form of civil legal aid? And is she required to grant the most generous form of legal aid to which an applicant is potentially entitled? In a decision handed down today, Richard Wright KC (sitting as a Deputy Judge of the High Court) has held that, while the Director has a discretion to grant legal aid in a form which has not been applied for, her duty is limited to considering the application that is in fact made, and she is required to grant the most appropriate (as opposed to the most generous) form of legal aid for which an applicant qualifies.

In so holding, the Court dismissed a claim for judicial review of a refusal of the Director to grant civil legal aid in the form of full representation to a victim of human trafficking for a proposed appeal to the First-tier Tribunal against a decision of the Criminal Injuries Compensation Authority refusing to award him compensation under the Criminal Injuries Compensation Scheme. The Court held that the Director had not erred in law by failing to consider granting legal aid in the form of investigative representation in circumstances where it had not been applied for, and that the Director had acted rationally in granting legal aid in the form of legal help. The Court also dismissed allegations of unlawful delay on the basis that they were academic and, in any event, not well founded on the facts.

The judgment of the Administrative Court in R (Szczurkowski) v Director of Legal Aid Casework [2026] EWHC 1075 (Admin) can be read here.