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Recommending a grant

A positive recommendation should flow from the facts of the case and the analysis conducted.

Section 28(2)

This section states that if all the criteria (28(2)(b)-(e) (or 28(2)(b) and (d), where the case concerns the welfare of a child or a sex offender’s order)) are met then subject any other provisions of the Act the Board must grant legal aid. These criteria are:

SectionCriteria
S28(2)(b)the applicant has as a matter of law reasonable grounds for instituting, defending, or, as may be the case, being a party to, the proceedings the subject matter of the application,
S28(2)(c)the applicant is reasonably likely to be successful in the proceedings, assuming that the facts put forward by him or her in relation to the proceedings are proved before the court or tribunal concerned
S28(2)(d)the proceedings the subject matter of the application are the most satisfactory means (having regard to all the circumstances of the case, including the probable cost to the applicant) by which the result sought by the applicant or a more satisfactory one, may be achieved.
s28(2)(e)having regard to all the circumstances of the case (including the probable cost to the Board, measured against the likely benefit to the applicant) it is reasonable to grant it.

Consider each of these criteria and indicate your reasoning why you think each one has been met.  Then proceed to review the criteria in section 24.

Section 24

The case must meet both of the criteria in section 24. Again, consider each of these criteria and indicate your reasoning why you think each one has been met.   If a case does not meet either criterion you must recommend a refusal.

SectionCriteria
S24(a)a reasonably prudent person, whose means were such that the cost of seeking such services at his or her own expense, while representing a financial obstacle to him or her would not be such as to impose undue hardship upon him or her, would be likely to seek such services in such circumstances at his or her own expense and
S24(b)a solicitor or barrister acting reasonably would be likely to advise him or her to obtain such services at his or her own expense.

In general, if one of the criteria contained in section 28(2) have not been met it will be difficult to meet the criteria in section 24.  That being said it is open to you to make the case that notwithstanding that one or more of the criteria in section 28(2) have not been met it may still be possible to recommend a grant under section 24.

If the case meets all the criteria in section 24 and 28 your recommendation should be to grant.