Recommending a refusal
If the case does not meet one or more of the criteria in section 28(2)(b) – (e) the case is unlikely to meet the criteria of section 24(a) and (b). Where a number of the applicable criteria in section 28 (b) – (e) are not met then this should point towards recommending a refusal.
It is not acceptable to make a positive recommendation having conducted an analysis and the conclusion made pointing towards a negative recommendation/refusal. In particular, you should not make a positive recommendation knowing that the applicant’s prospects of success are poor. In these cases, you must recommend a refusal.
All recommendations to refuse from a solicitor making the application must cite one or more of the grounds in the Act together with a reason why the particular ground applies in the case concerned.
You must be able to back up this opinion. In this case the Statement of Facts must state the facts grounding the negative opinion and that this opinion must be supported by reference to the law and the relevant provisions of the Act and Regulations
When recommending a refusal you must:
- have advised the applicant as to the substantive law governing the relevant issue;
- have advised of the provisions of the Act and the Regulations;
- confirm that the applicant was advised of those matters;
- provide the substance of the legal advice in the application;
- where a matter is excluded by the Act and/or Regulations, confirm that the applicant was so advised but sought to proceed with the application;
- have notified the applicant of the statutory obligation to express an opinion that legal aid should be refused in the particular case and explain in as simple terms as possible the reasons for the opinion along the lines of the legal advice already conveyed to the applicant;
- Give the applicant the opportunity to forward written submission(s) before making the application and require that any such submissions be sent in within 14 days of being notified; and
- advise the applicant of the option of submitting this information directly to the Board rather than via his/her law centre
- substantiate the basis for a negative opinion by reference to the facts, the law and the relevant provisions of the Act and the Regulations, in particular;
- set out the specific merit criteria of the Act (e.g. Section 24 (a) and (b) and/or Sect 28(2) (a) to (e) of the Act) which are relied on in recommending a refusal.
- set out a summary of the reasons for recommending the refusal which can be relied on by the decision –maker.
In recommending a refusal you should refer to all relevant sections of the Act that are applicable, including sections 24 and 28(2). (There may be other specific provisions that are relevant, including section 28(4)). In referring to the sections you should provide reasons why the relevant criteria have not been.