LEGAL SERVICES AGENCY V MCDONALD-WRIGHT HC WN CIV 2009-404-6356

LEGAL SERVICES AGENCY V MCDONALD-WRIGHT HC WN CIV 2009-404-6356 20 April 2010IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY CIV 2009-404-6356UNDER the Legal Services Act 2000 IN THE MATTER OF an appeal from a decision of the Legal Aid Review Panel dated 1 September 2009 BETWEEN LEGAL SERVICES AGENCY Appellant AND BROOKE MCDONALD-WRIGHT Respondent Hearing: 10 March 2010 Appearances: G Taylor for the appellant F Handy and H Northover for the respondent Judgment: 20 April 2010 at 11.30amJUDGMENT OF CLIFFORD JIntroduction[1] The appellant, the Legal Services Agency ("the Agency"), declined an application by the respondent for legal aid in connection with a Parole Board hearing. The Legal Aid Review Panel ("the Panel") subsequently overturned that decision. The Agency now appeals against that decision of the Panel.Background[2] This case concerns legal aid for offenders attending Parole Board hearings. It involves changes that have occurred over time both in the legislation on that matter,and in the Agency's attitude to that legislation. This judgment will deal with those matters in some detail. [3] For present purposes, and by way of background, it is sufficient to note that at the time of the respondent's application the Agency's approach was that, other than to the extent that "criminal" legal aid was available under s 6 of the Legal Services Act 2000 for certain Parole Board matters, "civil" legal aid was available for other Parole Board matters in terms of s 7(1)(e) of that Act. Section 7(1)(e) makes civil legal aid available for proceedings in the Māori Land Court, the Māori Appellate Court, the Employment Court, the Employment Tribunal and, subject to certain exceptions, "any administrative tribunal or judicial authority". In order to make a grant of civil legal aid under s 7(1)(e), the Agency has to conclude that the case is one that requires legal representation (having regard to the nature of the proceedings and to the applicant's personal interests), and that the applicant would suffer substantial hardship if aid were not granted. [4] In May 2009 the respondent, then a 17 year old prisoner in Arohata Woman's Prison, applied for civil legal aid under s 7(1)(e)(v) in connection with a parole application. Mr Handy, counsel for the respondent in this appeal, filed that application on her behalf. [5] Question 40 of the standard form asked the applicant to advise in which forum her case would be heard. Mr Handy advised that the case would be heard at a Parole hearing. The form then goes on to ask the following question:If the proceedings are in one of the forums listed in s 7(1)(e), please provide a summary of why the case is one that requires legal representation (having regard to the nature of the proceedings and the applicant's personal interest) and why the applicant would suffer substantial hardship if aid were not granted.[6] No information was provided in response to that request. In the part of the form which speaks generally of the "justification for legal aid" the following information was, however, provided:The applicant is only 17 years old. She was sentenced to two years and eight months for arson. She has been in a Youth Justice facility since the offence. For some 140 weeks. She was transferred to Arohata only a couple of weeks ago. She was sentenced on 15 April. Her parole eligibility date is 23 April. She requires representation because she is young and immature. Only byrepresentation can coherent and serious submissions be made on her behalf. In this case, the prison recommended the applicant to get legal representation.[7] In completing that part of the form, Mr Handy went on to advise that the remedy the respondent sought was release on parole and that, in terms of her prospects of success, because of her youth and already lengthy period of incarceration she had a good chance of being released on parole. [8] The Agency replied to the respondent's request by email to Mr Handy on 12 May 2009. Perhaps because Mr Handy had not provided any information in direct response to the s 7(1)(e) question, that reply read:Thank you for your application for legal aid for the above client. In order to grant legal aid for this parole hearing, the Agency needs to be satisfied that legal representation is necessary and that the applicant would suffer "substantial hardship" if not represented. These criteria are imposed under s 7(1)(e) of the Legal Services Act 2000.[9] Mr Handy replied the next morning. He said that he thought he had provided reasons why legal representation was necessary. He then he outlined the following reasons:1. The applicant is only 17. 2. She is immature. 3. She has a significant chance of being released on parole if the case is put to the Board in a coherent and reasoned way. 4. She was recommended by the prison probation officer to seek legal representation. 5. Her case for being released on parole may not be put to the best advantage if not represented. These reasons add up to the applicant suffering a substantial hardship if not represented.[10] The Agency replied a short time later that morning. Whilst it accepted that the applicant would benefit from some kind of support, it was not satisfied that legal representation was necessary in the absence of specific legal questions or issues. It said that "If you can provide us with legal questions that only legal counsel would be able to address then we can consider the grant of aid".[11] Mr Handy replied, asking where did s 7(1)(e) say that legal representation was only to be provided where there were legal questions that only legal counsel would be able to address. He suggested that advocacy was not restricted to legal questions but could involve representation at an application for parole. [12] The next day, 13 May, the Agency wrote to Mr Handy advising that it had declined legal aid. The Agency stated that it was not satisfied that legal representation was necessary or that the applicant would suffer substantial hardship if aid were not granted. Mr Handy then asked the Agency, under s 29 of the Legal Services Act, to reconsider its decision. He repeated the points he had made in his application and, in addition, submitted that the Agency was wrong to focus on the need for specific legal questions or issues, in the absence of which legal representation was not necessary. Mr Handy said that release on parole was a legal issue, and the Parole Board had to be satisfied that the various criteria for release were satisfied. That created legal questions and issues that could be addressed more satisfactorily by a lawyer than a support person. In the absence of the respondent being properly represented, she would suffer significant hardship in that she might well be declined a release on parole. [13] On 20 May the Agency confirmed its earlier decision by reference to the two limbs of s 7(1)(e). It went on to state:In this instance the Agency has not been provided with any information about the necessity for legal representation, beyond the mere assertion. We note the comments your lawyer made in paragraph 6-9 of his letter however the legislative regime does not assume that legal representation at Board hearings is routine, we refer to section 49 of the Parole Act. Legal representation is not automatic and is only permitted if the circumstances justify it. There is no evidence that you have any form of disability or limited capacity to understand the Board proceedings. In this instance we do not consider it a substantial hardship that you are 17 years old.[14] The respondent subsequently applied to the Panel to review the Agency's decision. [15] In a decision of 1 September 2009, the Panel reversed the Agency's December.[16] I understand that the respondent subsequently received legal aid in connection with a Parole Board hearing, and was released on parole. To the extent the Agency succeeds in its appeal against the Panel's decision, it would not seek to recover legal aid paid.The Panel's decision[17] The Panel first characterised the Agency's decision as being one where the Agency had concluded that the respondent was not suffering from any disability or limited capacity, and that the proceedings before the Parole Board were not complex and did not raise particular legal issues. Therefore, the applicant could adequately represent her own interests without suffering substantial hardship. Mr Taylor, for the Agency, did not challenge that categorisation of the Agency's decision. [18] The Panel then identified a number of what it called "problems" with the Agency's approach. In summary these were: a) The Agency's approach to the amount of evidence required to support a claim was unrealistic and unreasonable. The Agency had rejected the material supplied summarily. In its first advice it had not referred to the information at all. It had subsequently characterised the application as expressing a simple opinion, and not one the Agency could rely on as a medical or psychiatric diagnosis. The Panel found it was not reasonably open for the Agency to summarily reject the materials. b) In assessing the requirement for legal representation, the Agency had focussed on the purported need to prove disability or limited capacity. In so doing it had excluded the possibility that other circumstances might legitimately provide a foundation for a finding that legal representation was necessary. It had therefore misdirected itself as to the evaluation required under s 7(1)(e). c) The Agency had further misdirected itself as regards the evaluation required under s 7(1)(e) by approaching the question of "requirement"on the basis that "legal representation would not be necessary unless there were legal questions that only legal counsel could address". The Panel concluded that representation might also be necessary in other cases, such as where the applicant requires the support of the experienced advocate. The Panel considered this was such a case. d) Finally, the Agency had misdirected itself about the meaning of substantial hardship. It had set the bar too high. In so doing, the Agency had failed to recognise the degree of hardship potentially implicit in all hearings before the Parole Board, as opposed to other administrative tribunals for which aid might be provided under s 7(1)(e). [19] Taking all those matters "in the round", the Panel concluded that the Agency's decision was manifestly unreasonable.This appeal[20] The Agency appeals under s 59 of the Legal Services Act, which provides for appeals on questions of law. As originally filed, and as argued before me, I think a fair description of the points of law raised by the Agency are as follows: a) The Legal Services Act limits legal aid for Parole hearings to the matters stated in s 6(1). Therefore, and although this was not a point taken originally by the Agency or argued before the Panel, the Agency in fact had no jurisdiction under s 7(1)(e) to grant civil legal aid to the respondent for her Parole Board hearing. b) The Panel erred in law in the way it approached the requirement for legal representation and the test for substantial hardship in s 7(1)(e)(v). c) In finding that the Agency's decision was manifestly unreasonable, the Panel had substituted its views for that of the Agency, and had therefore not approached its task on review correctly.DiscussionAvailability of civil legal aid for Parole Board hearings[21] The Legal Services Act provides generally for legal aid in respect of certain criminal matters (s 6) (criminal legal aid) and certain civil matters (s 7) (civil legal aid). [22] An application for criminal legal aid under s 6 requires, in summary, consideration of: a) whether or not the applicant has sufficient means to enable him or her to obtain legal assistance (s 8(1)(b)); and b) whether the offence to which the application relates is punishable by a maximum term of imprisonment of six months or more, or whether it appears to the Agency that the interests of justice require the applicant to be granted legal aid (s 8(1)(c)). [23] Section 8(2) then sets out a range of matters the Agency must have regard to in considering whether the interests of justice require that an applicant be granted legal aid. Subject to considering those matters, the Agency may grant legal aid for criminal matters. [24] An application for civil legal aid under s 7: a) must, in the absence of special circumstances, be refused when the income and disposable capital of the applicant exceeds the specific threshold (s 9(2)); b) must be refused if the applicant has not shown that he or she has reasonable grounds for taking or defending the proceedings in question (s 9(3)); and c) may be refused where: i) the applicant's prospects of success are not sufficient;ii) the grant of legal aid is not justified having regard to the nature of the proceedings and the applicant's interest in those proceedings (financial or otherwise); or iii) for any other cause it appears unreasonable or undesirable that the applicant should receive legal aid (s 9(4)(d)). [25] Applications for legal aid for proceedings before the specific tribunals mentioned in s 7(1)(e), 1 or before other administrative tribunals or judicial authorities must, as noted at [3], meet two further tests. These are that the Agency must be satisfied that legal assistance is required and, second, that the applicant would suffer substantial hardship if aid was not granted. [26] As can be seen from the foregoing analysis, criminal legal aid is more readily available than civil legal aid. Moreover, as regards civil legal aid itself, civil legal aid for proceedings before administrative tribunals or judicial authorities is more difficult to obtain than civil legal aid generally. [27] Within that scheme, s 6(c)(i) of the Legal Services Act specifically provides that proceedings before the Parole Board under ss 27, 65 and 107 of the Parole Act 2002 are criminal matters for which legal aid may be granted. 2 Section 6(c)(ii) further provides that proceedings in the High Court under s 68 of the Parole Act 3 are also such matters. [28] In terms of civil legal aid, it is accepted that the Parole Board is "an administrative tribunal or judicial authority" under s 7(1)(e)(v) of the Legal Services Act. Furthermore the Agency had initially, as evidenced by its initial consideration of the respondent's application, itself taken the view that civil legal aid was available for Parole Board hearings, other than for any hearing specifically referred to in s 6(c)(i) for which criminal legal aid is available.1 The Māori Land Court, the Māori Appellate Court, the Employment Court and the Employment Relations Authority.2 Section 27, postponement of consideration for parole; s 65, recall orders; and s 107, orders that offenders subject to determinate pre-cd sentences for specified offences not be released before the applicable release date.3 Appeals against postponement orders, final result orders and s 107 orders.[29] The Agency has previously commenced, but for reasons of its own subsequently discontinued, an appeal against decisions of the Panel which had reversed Agency decisions refusing applications for legal aid for Parole Board hearings. The Agency had made those decisions on the basis of the view it now asserts here, namely that s 6(c)(i) limits legal aid to certain Parole Board proceedings only. In Legal Services Agency v Walker that appeal came before Simon France J on an application for stay. 4 In declining the Agency's application for stay Simon France J commented:It has not been necessary to consider the merits of the appeal. I note, however, that the Agency's present interpretation of the law is the third position it has taken on the situation. Initially the applications were thought to fall within criminal legal aid; then in November 2005 the Agency publicly advised it had reconsidered this and was now treating them as falling within civil legal aid. Then in June 2006 it determined aid was not available at all, which remains its present position.[30] By this appeal, the Agency repeats its argument that the only proceedings before the Parole Board for which legal aid is available are the criminal matters proceedings referred to in s 6(c)(i). [31] Before me the Agency argued, in essence, that the specific reference in s 6(c)(i) to a limited number of proceedings before the Parole Board, together with the history and structure of the Legal Services Act, meant that Parliament could not have intended that civil legal aid would also be available under s 7 for other proceedings before the Parole Board. It argued that to conclude that civil legal aid was so available would require reading into s 7(1)(e)(v) words to the effect of "other than, in the case of the Parole Board, proceedings which are criminal matters in terms of s 6(c)". The Agency argues that there is no justification for reading such wording in. Moreover, the criteria for the grant of civil legal aid were not well suited to considering the position of an offender going through Parole Board processes. [32] Parliament has, very recently, amended the Legal Services Act so as to acknowledge explicitly the availability of civil legal aid for hearings of the Parole Board. In doing so it has used wording very similar to that which the Agency said could not previously be read into the legislation. Furthermore, Parliament has4 (2006) 18 PRNZ 280.amended the legislation in a way which arguably points to what Parliament considers to have been the position before that amendment. [33] Section 5 of the Legal Services Amendment Act 2009, which came into force on 17 February 2010, reads as follows:5 Proceedings for which legal aid may be granted: civil mattersSection 7 is amended by inserting the following subsection after subsection (1):(1A) To avoid any doubt, subsection (1)(e)(v) applies, without limitation, to the following proceedings: (a) an inquest held by a coroner for the purposes of Part 3 of the Coroners Act 2006; and (b) a hearing of the New Zealand Parole Board (other than one in a proceeding specified in section 6(c)(i)) that concerns an offender and is a hearing at which a victim may appear as of right or with the Board's leave.[34] Whatever the position may have been under s 7 as regards civil legal aid for Parole Board hearings prior to this provision coming into force, the enactment of s 7(1A) clearly affects the position as regards the Agency's first point of appeal now and in the future. That is, the Legal Services Act now specifically acknowledges that proceedings before the Parole Board described in s 7(1A)(b) are civil matters for which civil legal aid is available. In light of that, Mr Taylor for the Agency indicated that the Agency had no interest in winning its appeal in terms solely of the legislative provisions in force at the time of the respondent's application. Rather, the Agency asked that its appeal be considered as if s 7(1A) had also been in force at the time of the respondent's application. In that context, the Agency argued in effect that: a) prior to the introduction of s 7(1A), the only proceedings before the Parole Board for which legal aid was available were those specified in s 6(c)(i); and b) To the extent that s 7(1A)(b) changed that position, its effect was limited to making civil legal aid available to victims, and not offenders.[35] The relevant legislative history can be seen as starting with the Legal Services Act 1991. Section 19(e) of that Act provided, in very similar terms to s 7(1)(e)(v) of the current Legal Services Act, for civil legal aid for proceedings before administrative tribunals or judicial authorities. In his submissions, Mr Taylor acknowledged that, under s 19(e) of the 1991 Act, civil legal aid was available to offenders for Parole Board hearings, subject to the terms of the legislation. I agree with that. [36] The 1991 Act was amended by s 53 of the Criminal Justice Amendment Act 1993. As originally drafted, the 1991 Act would have been amended so that criminal legal aid was available for all Parole Board proceedings. As enacted, however, criminal legal aid was only made available (see s 4(c)) for:(c) Proceedings─(i) Before the Parole Board or a District Prisons Board under section 105 or section 107I of the Criminal Justice Act 1985: (ii) In the High Court under s 107M of that Act (which relates to appeals against the decisions of such a Board).[37] It was Mr Taylor's submission, based on that amendment, that Parliament's intention must have been to limit the provision of legal aid to offenders for Parole Board purposes to the proceedings referred to originally in s 4(c), and now in s 6(1)(c). I am not persuaded by that submission. [38] Mr Taylor accepted that under the Legal Services Act 1991 as originally enacted civil legal aid was available for all Parole Board hearings. In light of that, in my view, the history of legislation is better interpreted as showing that whilst in 1993 Parliament may have originally contemplated providing the more readily available criminal legal aid for all Parole Board hearings, it subsequently limited that enlargement to a sub-class of such proceedings. In my judgment, it does not follow that Parliament intended to take away the availability for civil legal aid that had previously existed. [39] Proceedings before the Parole Board or a District Prisons Board under s 105 or s 107I of the Criminal Justice Act 1985 were also introduced by the Criminal Justice Amendment Act 1993. They involved the new substantive procedures whereby certain prisoners could be required to serve their full term (s 105) or who,having been released, could be recalled to prison (s 107I). Similarly, s 6(c)(i) now refers to ss 27, 65 and 107 of the Parole Act, which provide procedures for the postponement of consideration for parole (s 27), recall orders (s 65) and orders that offenders subject to what are known as determinate pre-cd sentences for specific offences not be released before the applicable release date (s 107). These are all matters of considerable significance for a prisoner. Their significance is reflected in the fact that each of ss 27 and 107 provide, in effect, that such a decision may only be made at a hearing of which notice has been given to the prisoner and at which the prisoner has a right to be legally represented. Section 65 similarly provides for a recall application to be served on an offender and, where the offender indicates that he or she wishes to appear in person or through counsel, requires a hearing to allow that to occur. Section 68 of the Parole Act provides for a right of appeal to the High Court, following review by the Parole Board, against postponement orders, final recall orders and orders under s 107. Other types of Parole Board hearings, for example, consideration for release on parole (s 21), do not provide either for legal representation as of right or for there to be a right of appeal to the High Court. In my judgment, therefore, the better interpretation is that Parliament, in considering this issue, concluded that criminal legal aid, that is the more readily available type of legal aid, should be available for these very significant types of hearings before the Parole Board. At the same time, the less readily available civil legal aid would continue to be available for prisoners at other Parole Board hearings, noting not only that the civil legal aid provisions of the Legal Services Act restrict the availability of such aid, but that the provisions of the Parole Act do as well, as the Parole Board must first grant leave for a prisoner to be legally represented. [40] In my view, this interpretation is supported and confirmed by the legislative history of s 7(1A), and the use in that section of the words "for the avoidance of doubt". [41] The Legal Services Amendment Act 2009 was first introduced to Parliament as the Legal Services Amendment Bill 2008. The explanatory note stated:The general provisions of the Act in respect of financial eligibility testing and repayment conditions are appropriate for the vast majority of cases. However, to reduce the stress on victims of crime, this bill amends the Act to ensure that victims of crime attending a Parole Board hearing or coronial inquest are not subject to financial eligibility testing, and that any grants made do not have repayment conditions attached.[42] There is no doubt, therefore, that s 7 was amended in the context of legislation aimed at issues relating to the availability of legal aid for victims. I do not think, however, that by reason of that general context s 7(1A) is to be construed in the manner that Mr Taylor contended. [43] When first introduced, the Bill did not contain a provision equivalent to that of s 5 of the 2009 Amendment Act. Rather, the Bill proceeded on the assumption that civil legal aid was available for Parole Board hearings, and proposed changes which affected victims of crimes who might be granted civil legal aid for such hearings. [44] When the Justice and Electoral Committee reported the Bill back, it recommended that a new clause be inserted to "clarify" that s 7(1)(e)(v) of the principal Act applies to coronial inquests for the purposes of Part 3 of the Coroners Act 2006 and to hearings of the New Zealand Parole Board. [45] In that context s 7(1A) is, in my view, properly to be seen as clarifying the position that legal aid for such proceedings is available not only to victims, but also to offenders as well. By reference to the words "for the avoidance of doubt", it can be seen to be declaratory that civil legal aid was available for Parole Board hearings, rather than Parliament was making any substantive amendment to the law. Moreover, the words of the section are plain, and on their face do not provide that only victims may apply for and receive a grant of such legal aid. It would not be appropriate to conclude that Parliament had intended the somewhat surprising outcome that, whilst a victim who attended a Parole Board hearing may be entitled to legal aid, the offender whose status was under consideration could not be, unless Parliament had explicitly so provided. Further, in its substantive amending provisions, the Legal Services Amendment Act 2009 does specifically legislate for victims only. For example, s 9(8)(b) now provides that the income and disposable capital test, and the provisions of s 9(4)(a) and (b) relating to information to be provided, do not apply to applications for legal aid by a victim in respect of hearings before the Parole Board. In s 9(8)(b) Parliament distinguished between the position of offenders and victims. In my judgment, if Parliament had intended to in s 7(1A) to draw a distinction between victims and offenders, it would have done so expressly. It did not.[46] On the basis of that analysis, and as submitted by Mr Handy for the respondent, the position under s 7 as it applies to hearings of the Parole Board is clear. Criminal legal aid may be granted to offenders as regards the proceedings specified in s 6(c)(i). Other hearings of the Parole Board at which a victim may appear as of right or with the Board's leave may also be the subject of grants of legal aid to offenders and victims. It might, at first blush, be thought that the categorisation of the hearings referred to in s 7(1A), by reference to hearings at which a victim may appear as of right or with the Board's leave, provided some support for the Agency's position. In my view that is not the case. Rather that reference to victims in s 7(1A) confirms that the principal focus of Parliament's clarificatory declaration was to ensure that victims, as well as offenders, were able to receive such grants. Moreover, as victims may appear as of right or with the Board's leave at any "attended hearing" of the Parole Board (s 49(4)(a)), it is therefore all attended hearings, ie all hearings at which an offender attends, for which offenders may apply for and may be granted civil legal aid. [47] In light of that analysis it also follows that the Agency's further submission, that the criteria for the grant of civil legal aid were not well suited to considering the position of an offender going through the Parole Board process, is not persuasive. [48] In my judgment, therefore, the Agency's appeal on the basis that there was no jurisdiction to grant civil legal aid to the respondent fails.Error of law? Requirement for legal representation and the test for substantial hardship[49] Considerable attention was paid in this appeal by both the appellant and respondent to the question of what was the correct approach for the Panel to adopt when reviewing Agency decisions. On that point I think the position is reasonably clear. The Panel is to review a decision of the Agency by reference to whether or not that decision is wrong in law or manifestly unreasonable: s 54(1) of the Legal Services Act. Under s 57, the Panel may determine a review by confirming, modifying or reversing the decision under review. Section 57 provides that every determination of the Panel must be accompanied by a brief summary of the reasons for it. The Panel may, instead of determining a review, direct the Agency toreconsider all or any part of the decision to which the review relates. Accordingly it is not open to the Panel to approach the matter afresh and substitute its own view for that of the Agency. The statutory requirement is that the Panel should only intervene where the Agency is wrong in law or the decision is clearly and unmistakably unreasonable. Finally, as to the relationship between "manifestly unreasonable" and "wrong in law", I adopt the analysis set out by Miller J in Legal Services Agency v Brown.5[50] I think it is also appropriate that I clearly set out the basis upon which I approach my task on these aspects of this appeal. [51] In Legal Services Agency v Brown, Miller J stated at [30]:Mr Taylor reminded me that the Court's role in an appeal of this kind is to determine whether the Panel had erred in law, and not to determine whether the decision of the Agency was correct: F v The Medical Practitioners Disciplinary Tribunal (HC Auckland, AP 21-SW01, 5 December 2001, Laurenson J) at para 22. That said, the question whether the Panel erred in law is ordinarily answered by inquiring whether the Panel was right to conclude that the Agency erred in law or was manifestly unreasonable, since that is the test that must be satisfied in law before the Agency's decision may be reviewed.[52] I agree with Miller J's conclusion as to how the question of whether the Panel erred in law is ordinarily to be considered. Therefore, this ground of appeal essentially involves an assessment of whether or not the Panel was correct to say that the Agency had erred in law in the way that it approached the requirement for legal representation and the test for substantial hardship in s 7(1)(e)(v). [53] As will be obvious given the number of such decisions made by it, the Agency does not issue a detailed decision on each application for legal aid. That is no criticism of the Agency. Again, Legal Services Agency v Brown is helpful. There Miller J described how the Agency goes about decisions to grant or refuse aid: 6Decisions to grant or refuse aid are made by the Legal Services Agency. The Agency operates through eleven local offices. Appellate aid applications are dealt with in the Wellington office. Its head office is occupied with policy issues and management of the Agency's operation. There are 42 grants officers and 14 senior grants officers. I was told that each officer determines around 16 applications each day. Grants officers are assisted in making decisions by the Agency's service practice manual and by "specialist5 (2005) 17 PRNZ 523 at [35]–[37].6 At [21].advisors", being practitioners who provide advice and recommendations on applications. The Agency also has a committee that meets with one of its legal advisors twice monthly to review panel and Court decisions and determine what changes, if any, ought to be made to improve Agency decisionmaking. It is not surprising, therefore, that the Agency did not go into great detail in terms of its consideration of the respondent's application, and the views it took as regards the two s 7(1)(e) criteria.[54] The same comments apply to the Agency's decision here. The core of the Agency's decision as regards the respondent's application would, however, appear to be that: a) legal representation could only be required where there were legal questions that only legal counsel would be able to address; b) the respondent had not provided any information about her requirement for legal aid, beyond the submissions made by Mr Handy on her behalf; c) some form of disability or limited capacity to understand Parole Board proceedings might establish a requirement for legal aid, but that had not been established as regards the appellant; and d) it could not be said therefore that the respondent would suffer substantial hardship if aid were not granted. [55] In Burns v Legal Services Board Fraser J considered the implications of the twin tests, now found in s 7(1), of the Agency needing to consider that the case is one that requires legal representation and that the applicant would suffer substantial hardship if aid were not granted. 7 The proceedings in question in Burns were proceedings before the Coroner relating to the death of the applicant's son. Fraser J concluded that whether representation was required involved an objective assessment of the circumstances and a determination of whether such representation was reasonably required, having regard to the nature of the proceedings and the applicant's interests. The test depended not only on the statutory nature of the proceedings, but also on the particular circumstances of the individual case. InBurns it was known before the Coroner's hearing for which aid was sought, that7 [1995] 1 NZLR 594.there was uncertainty as to the cause of the applicant's son's death. It had been necessary to consult outside experts, therefore cross-examination on technical medical matters was expected to be important. Other interested parties were represented by senior counsel, the issue involved was complex and difficult. In those circumstances, Fraser J concluded that the Review Authority (as it then was) was in error in determining that representation was not reasonably required. Similarly, if representation was reasonably required, then in the circumstances of the case substantial hardship would be incurred if aid were refused. The applicant would either have to make financial provision for legal representation, if that were a practical possibility, or appear personally and cross-examine witnesses or take no part in the inquest. [56] The key guidance from Burns is the need for there to be an objective assessment of the circumstances, and a determination as to whether representation is reasonably required having regard to the nature of the proceedings and the applicant's interests. On that basis, the approach taken by the Agency, namely that legal representation could only be required where there were legal questions that only legal counsel would be able to address, appears unduly narrow. [57] In my judgment, further help in considering this issue can be found from the definition of the term "legal services" found in the Legal Services Act itself. Whilst s 7(1)(e) uses the words "legal representation", I do not consider that "legal representation" should be viewed as in some way being narrower than the provision of legal services. It would appear that the use of the phrase "legal representation" in s 7(1)(e) probably originated under the previous legislation where (at s 14) civil legal aid was said to consist of:representation, on the terms provided for by this Act, by a solicitor and, so far as necessary, by counsel, including all assistance usually given by a solicitor or counsel and the steps preliminary or incidental to any proceedings in arriving at or giving effect to a compromise to avoid or bring an end to any proceedings.[58] The purpose of the Legal Services Act is to "promote access to justice by providing a legal aid scheme that assists people who have insufficient means to pay for legal services to nonetheless have access to them". Therefore, the definition of "legal services" in the Legal Services Act is a good indication of the type ofcircumstances in which legal representation can be required. As defined, "legal services" comprise:a) in relation to legal aid, means legal advice and representation; and includes assistance— (i) with resolving disputes other than by legal proceedings; and (ii) with taking steps preliminary or incidental to any proceedings; and (iii) in arriving at or giving effect to any out-of-court settlement that avoids or brings to an end any proceedings:[59] In other words, legal representation may be required where assistance of the nature specified in that definition can be said to be required. [60] In my judgment, and in light of those considerations, I agree with the Panel that the Agency erred in law and took too narrow a view in approaching the requirement for legal representation in terms of its proposition that such representation "could only be required where there were legal questions that only legal counsel would be able to address". [61] My conclusion on that point is supported, in the context of Parole Board hearings, by the views expressed by Judge Carruthers, the chairperson of the Parole Board, in an affidavit filed for the purposes of this appeal. That affidavit had originally been prepared to be filed in Legal Services Agency v Walker, 8 where the New Zealand Law Society had been granted intervenor status. In his affidavit, Judge Carruthers explained that there are three ways in which lawyers can be of particular assistance to the Parole Board. These were in: a) ensuring the Board has full information about the offender, including programmes or referrals that may best assist the offender's reintegration into the community; b) acting as a bridge between the Board and the offender, to assist with communicating the Board's reasons for its decisions to offenders; and8 (2006) 18 PRNZ 280 at [12].c) acting as a check on the Board's processes and decision-making, to ensure the Board is accountable and acts in accordance with its governing legislation. [62] Judge Carruthers concluded that he did not believe representation was necessary in all cases which came before the Board, but that in many cases legal representation was essential if the Board was to perform its duty satisfactorily. [63] The question here, therefore, becomes whether the Panel was correct to conclude that the respondent "required" such legal assistance and representation, and whether she would suffer "substantial hardship" if legal aid were not granted. [64] The respondent was at the time of her application a 17 year old young woman, who had been found guilty of arson. She had completed some 266 days on remand in a Youth Justice facility, and had only recently arrived at the prison, and had not had time to be fully assessed. The Parole Board hearing was to determine whether she could be released on parole. The partial parole assessment report, which had been provided to the Agency when it had been asked to review the respondent's application, had noted that, whilst she was an intelligent young person, she was assessed by staff at the prison as still being a child. [65] In the circumstances, her requirement for legal representation is in my view to be assessed against: a) her relative youth, and the likelihood therefore that she would be unlikely to be in a position to adequately represent herself; b) the fact that, because she had only recently arrived at the prison, there had only been time for a partial parole assessment to be prepared; and c) that her liberty was at stake. [66] In my judgment, in those circumstances I do not think it is hard to conclude that she reasonably required, or in other words had a need for, legal aid. Such a requirement may not have been an absolute necessity, but that in my view is not what the statute calls for.[67] I turn now to the Panel's criticism of the Agency's approach to the test of substantial hardship. [68] This is, perhaps, a more straightforward matter. As noted above, the respondent's liberty was effectively at stake. If, with the benefit of legal aid, the respondent's parole application would in a material and substantial way be better advanced on her behalf, then I think that it can properly be concluded that in the absence of that legal representation she would suffer substantial hardship. Substantial hardship can be considered from two perspectives. First, there is the substantial hardship that the respondent would not have been able to effectively advance her case for parole to the Parole Board. Objectively assessed, I think her ability to participate meaningfully in the Parole Board processes, even where those are designed to encourage people to speak on their own behalves, was a very real consideration. Furthermore, the applicant would also suffer the substantial hardship that her opportunity to gain parole would thereby be adversely affected. I have no doubt that for any 17 year old, imprisonment is a daunting prospect. I think the continuation of that loss of liberty, where it may not have been necessary if effective legal representation were provided, does constitute substantial hardship. [69] I therefore find that the Panel correctly identified that the Agency erred in law in the way it approached the requirement for legal aid. Furthermore, I think the Panel properly applied the two tests in s 7(1)(e)(v) in considering the respondent's application for legal aid.Manifestly unreasonable – the wrong approach?[70] In those circumstances, and although the Panel concluded in the round that the Agency's decision had been manifestly unreasonable, I do not consider that – properly understood – the Panel decided the appeal by reference to the Agency's decision being manifestly unreasonable, separately from the legal errors the Panel had found. On that basis, I do not consider that, as Mr Taylor submitted, the Panel had improperly engaged in a criticism of the relative correctness of the Agency's decision. Rather, and as I have indicated, I consider that the Panel was right to find that the Agency had erred in law and then itself correctly applied the relevant legal test.[71] This is not to find that all offenders appearing before the Parole Board will be entitled to legal aid or, in other words, that it will necessarily be manifestly unreasonable for the Agency to decline grants of legal aid to such prisoners. Rather, my judgment is based upon my conclusion that the Agency erred as regards the meaning of the requirement for legal aid, and that in the circumstances of the respondent's case, the Panel correctly granted her legal aid. [72] The Agency's appeal is dismissed accordingly."Clifford J"Solicitors: Bartlett Partners, P O Box 10-852, Wellington for the appellant (Counsel: g.taylor@barristerscomm.com) Francis J Handy, P O Box 5457, Wellington for the respondent (frankhandy@clear.net.nz)