Nicholson v Legal Services Agency HC Auckland CIV 2008-404-000880
[2008] NZHC 2389
•30 June 2008
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
CIV 2008-404-000880
UNDER The Legal Services Act 2000
IN THE MATTER OF an appeal against the decision of the Legal
Aid Review Panel dated 11 December 2007
BETWEEN PAULINE BETH NICHOLSON Appellant
ANDLEGAL SERVICES AGENCY Respondent
Hearing: 14 May 2008
Appearances: M J McCartney for Appellant
R M Taylor for Respondent
Judgment: 30 June 2008
JUDGMENT OF COOPER J
This judgment was delivered by Justice Cooper on
30 June 2008 at 4.00 p.m., pursuant to r 540(4) of the High Court Rules
Registrar/Deputy Registrar
Date:
Solicitors:
Cockcroft d’Young Moorhouse, PO Box 32018, Devonport, Auckland 1309
Bartlett Partners, PO Box 10852, Wellington 6143
Copy to:
M J McCartney, PO Box 47 114, Ponsonby, Auckland 1144R M Taylor, PO Box 5294, Lambton Quay, Wellington 6011
NICHOLSON V LEGAL SERVICES AGENCY HC AK CIV 2008-404-000880 30 June 2008
[1] The appellant appeals against a decision of the Legal Aid Review Panel declining to write off the sum of $11,266.27 owed to the Legal Services Agency by the appellant as a recipient of legal aid.
Background
[2] The appellant is aged 72 years. Her income consists of New Zealand Superannuation, which she receives at the net rate of $13,000 per annum and the amount earned by an investment of $242,000. She married for the second time in
1978, when she was aged about 43 and her husband 27. He brought no assets to the marriage. She had a home which was subject to a small mortgage, a car and various chattels.
[3] During their marriage, they both worked. They bought a home. The appellant inherited about $100,000 from her mother and contributed $75,000 to improvements of the relationship property. Subsequently they moved. Ultimately the husband left to enter a new relationship. He was then aged 50, and the appellant
66. At the end of the marriage the net value of relationship property was less than
$600,000.
[4] There was a dispute about the respective shares of the appellant and her former husband in the relationship property. Litigation ensued. In the Family Court, on the basis of the disparity in their ages, the fact that she had made greater contributions to the marriage in the form of property and other considerations, the appellant contended for a greater share of the relationship property. The Family Court however decided that the property should be equally divided. The Family Court also ordered that the husband pay her $1,000 per month for a period of three years as maintenance. Dissatisfied with the outcome in the Family Court, the appellant appealed to the High Court, and for that purpose she was granted legal aid. It was a condition of the grant that she would be required to make an initial contribution of $50 and further contributions, initially assesed as $6,461. Another
condition of the grant was that a caveat be registered over the appellant’s residential property.
[5] Keane J’s judgment on the appeal is reported as Beran v Beran [2005] NZFLR 204. He held that the Family Court had been entitled to conclude that factors on which the appellant relied, such as a greater contribution to the relationship from property that she brought to it, as well as inheritances received during it, were not extraordinary. Contributions made by the husband during the relationship had balanced her capital contribution to the relationship. Further, although there was a disparity in the post separation incomes and the living standards of the parties, the appellant had not been able to show that the disparity was as a result of any conscious or deliberate division of functions within the marriage that could have led to the discrepancy.
[6] As to the provision made in the Family Court for maintenance for a period of three years, Keane J pointed out that the award had been made under s 63 of the Family Proceedings Act 1980, having been made at a time when the parties were still married. However long such an order was expressed to be for, it could in fact only enure for as long as the marriage existed. Once the marriage was dissolved, liability would have to be reconsidered under s 64. In the circumstances, there was no point in revisiting the duration of the order on the appeal although Keane J did observe that if the marriage were dissolved and an application made under s 64 of the Family Proceedings Act, a term beyond three years could be considered, noting that “age has always been a factor under s 64”.
[7] Ms McCartney advised that the appellant decided not to take any further steps. In the result, she received about $295,000 as her share of the relationship property and worked part time earning about $21,000 per annum. I was advised by counsel that the appellant had lost her job, not having the “technological skills required to keep up with demanding modern office work”. Thus her income was reduced to the annual superannuation payment of $13,000, and the interest on the money she had invested. Reliant solely on that income, she could not afford the interest and principal payments on her mortgage of $100,000. She had to sell her home.
[8] The Legal Services Agency had the benefit of a statutory charge under s 32 of the Legal Services Act 2000. The appellant had prepared and delivered a caveat, noting the Legal Services Agency as the caveator, but due to an apparent oversight the caveat had not been registered.
[9] The relationship property litigation was concluded without immediate advice to the Legal Services Agency. When the Legal Services Agency made inquiry as to the progress the appellant, through counsel, advised the Agency that the litigation was at an end and she subsequently applied for a “waiver of the land charge.” Ms McCartney’s letter, dated 22 February 2007, was in the following terms:
Legal Aid 03a024866 – Pauline Beth Beran
As requested, I now make formal application to Legal Services for a waiver of the land charge against Ms Pauline Nicholson (formerly Beran).
My client’s bank, Westpac, have prepared a schedule of income and expenditure for my client dated February 2007. I enclose a copy for your information. You will note there is an annual deficit of $4,619.
My client is a superannuitant and is now unemployed. No further application for maintenance is considered worthwhile as the former husband has abandoned his previous employment to commence a business as a bookshop owner.
I submit this is an appropriate case for a waiver of the charge.
[10] By letter dated 25 July 2007, the Legal Services Agency declined the application. The letter was in the following terms:
Confirmation of write-off decision
Your legal aid number is: 03A24866
Amount written off: NIL
Your new balance is: $11,165.27
Your case has now finished and we have calculated your final repayment. Your final repayment is $11,165.27. This amount is based on the final cost of your legal aid of $11,266.27 and the initial contribution payment received of $50.00.
I am sorry to advise that your write-off request has been declined.
I have considered your application and made my decision on the following grounds:
• I do not consider that requiring you to repay your debt will cause you hardship. This is because the debt is payable from a capital investment of $283,600.00.
• Your case did not fit the justice and fairness condition as I consider:
o Your appeal has been dismissed.
• The reason for write-off did not fit any of the allowable circumstances outlined under section 37 of the Legal Services Act 2000.
• However, in light of your income and age situation the Agency agrees to defer payment and to secure the debt by way of Statutory Land Charge to[sic] the following conditions:
o Settlement date for the purchase of the property to occur within six months from the date of this letter
o Property to be purchased in your own name as sole proprietor
o Any charges or mortgages over the property subject to prior approval by the Legal Services Agency
o Debt of $11,165.27 to be secured by Statutory Land Charge
o Funds of $11,165.27 to be held in trust by Cockcroft d’Young Moorhouse until purchase of property and Legal Services Agency’s interests to be protected by solicitor’s undertaking pending registration of the Statutory Land Charge
o Debt to be repaid, once the property is sold, transferred or encumbered, or if any of the above conditions are not met.
If you are not satisfied with this decision you can seek a reconsideration or a review (refer to back page for details).
Yours sincerely
[11] The appellant exercised her right to apply to the Legal Aid Review Panel to review the Agency’s decision. In its decision of 11 December 2007 the Legal Aid Review Panel confirmed the decision.
[12] Having noted that the appellant had sought a write off on grounds of hardship, pursuant to s 37(1)(a) of the Legal Services Act, and on the just and equitable basis referred to in s 37(1)(d) (in the form of the Act as it then stood), the Review Panel set out its reasons for the decision as follows:
[19] The term “hardship” is not defined in the Act, but is discussed in
Legal Services Agency v Sweeny (supra). While the Agency must
look at financial hardship the definition encompasses hardship beyond just financial hardship.
[20]The Applicant receives National Superannuation and has additional income from interest on her investment. The Panel accepts the Agency’s submission that her financial circumstances do not constitute hardship, and that having to repay her contribution would not make her circumstances unusually hard to bear. Almost two thirds of New Zealanders over the age of 65 rely on National Superannuation as their only source of income, and while their lifestyles may of necessity be modest they do not suffer hardship in that their circumstances are not unusually hard to bear.
[21]In LARP 286/05 (27 June 2005) the Panel confirmed a decision by the Agency not to write-off a contribution of approximately
$20,000.00 in favour of an elderly applicant whose only income was
National Superannuation because she had equity of $300,000.00 in her home against which a charge could be registered. It was
considered that in those circumstances repayment would not cause
hardship. The present Applicant is in a similar position, the Agency having offered to take a charge against any future property she might
purchase within a reasonable time. This would avoid the need for
the Applicant to repay her debt to the Agency out of her capital.
[22]The Panel also accepts the Agency’s submission that there are no applicable justice or fairness criteria to warrant a write-off of the Applicant’s contribution. It was her choice to appeal to the High Court against a Family Court decision with which she was not satisfied, and it is neither unjust nor unfair to expect unsuccessful appellants to meet their legal costs. That the Agency considerably reduced the sum required by way of contribution in its final assessment is indicative of its desire to recognise that the Applicant had, to some degree, suffered misfortune.
The appeal
[13] In her appeal to this Court, the appellant maintains her stance that the debt to the Legal Services Agency should have been waived under either s 37(1)(a) or (d) of the Legal Services Act 2000. That section has since been amended, but in the form in which it stood at the times relevant to this appeal, the section provided as follows:
37 Agency may write off amounts payable
(1)The Agency may write off all or any part of a contribution or repayment payable to the Agency by an aided person in any of the following circumstances:
(a) enforcement of the debt would, in the opinion of the
Agency, cause hardship to the aided person:
(b) enforcement of the debt would, jeopardise a reconciliation between parties to proceedings referred to in paragraphs (a), (b), or (c) of the definition of civil proceedings in section
4(1):
(c)
the cost to the Agency of enforcing the debt is likely to exceed the amount of the debt:
(d)
the Agency considers that justice and fairness would best be served by writing off the debt.
[14]
In support
of the “hardship” ground, Ms McCartney alleged that in
addressing hardship, both the Agency and the Legal Aid Review Panel had failed to the particular circumstances of the appellant, and to apply the relevant statutory criteria to her circumstances. In her statement of income and expenditure of February 2007, the appellant had referred to total income of $28,981 and to total expenditure of $33,600, giving an annual deficit of $4,619. The figure for income had included almost $16,000 in respect of interest on a capital investment of
$283,600. That capital investment has since reduced in value to $242,000 with a commensurate reduction in annual income. Her recent expenditure also shows an increase to approximately $37,430. That includes an increase in rent of $15 per week. The annual deficit has swollen to $6,749. However, Ms McCartney maintained that the budget prepared and submitted in support of her original application was sufficient to show hardship.
[15] Her argument was in part based on the fact that the deficit would become larger with the passing years because of the reduction in the capital invested by the amount of the annual deficit. In the meantime, expenditure will increase with inflation and contingencies are likely to increase.
[16] In an affidavit sworn in support of the appeal, the appellant deposed that her investment would be gone in 16 years, when she would be 88 years of age, as a result of having to draw on the capital to meet living expenses. In all the circumstances, counsel submitted that both the Agency and the Legal Aid Review Panel should have concluded that enforcement of the debt would cause hardship to the appellant.
[17] Turning to the “justice and fairness” issue under s 37(1)(d), Ms McCartney pointed to circumstances of unfairness as a result of the outcome of the litigation in the Family Court and in this Court on appeal, having regard to the duration of the appellant’s marriage (22 years), and the fact that she had supported her husband in a lucrative job until the marriage came to an end. Then she referred to the small length of time for which maintenance had been directed and pointed out that the appellant had lost her house. Writing off the legal aid costs would go some way to recognise the injustice of the situation with which she had been confronted. Ms McCartney emphasised the appellant’s age and also the fact that the Agency had been prepared to deal with the matter by way of a charge, in which event the appellant would not have been called on now to repay the debt. However, the unfortunate combination of circumstances had meant that she was no longer in a position to afford to maintain her home.
The respondent
[18] For the respondent, Ms Taylor argued that the decision of both the Agency and of the Legal Aid Review Panel were correct. Pointing out that appeals from the Review Panel’s determination are limited to questions of law by s 59 of the Legal Services Act, she submitted that the appellant’s case amounted to an allegation that the Panel had not considered the circumstances relied on by the appellant as establishing hardship, or the circumstances relied on as establishing that it was just and equitable to write off the debt and that the Panel had erred by failing to consider the criteria contained in s 37 relevant to a write off of the debt.
[19] Ms Taylor maintained that the Panel had considered the circumstances relied on by the appellant as establishing hardship. It had also considered whether it was just and equitable to write off the debt and it had properly drawn its mind to relevant considerations under s 37(1)(d).
[20] She referred to the discussion of “hardship” in Legal Services Agency v Sweeney (2005) 17 PRNZ 767 in which Williams J had described the Legal Services Agency’s policy manual provision for “hardship”. He held that the Agency had improperly focussed on “financial hardship”, thereby unduly fettering its discretion
and its approach to its statutory obligations. In His Honour’s view, a careful reading of s 37(1)(a) showed that hardship is not to be addressed solely in terms of financial considerations:
While many decisions as to whether enforcement of the debt due to the Agency might cause hardship to an aided person would involve consideration of the financial impact of enforcement on that person, “hardship” is a general word not confined to financial exigencies. “Hardship” is defined as the “quality of being hard to bear” and “a condition which presses unusually hard upon one who had to endure it”. (Oxford English Dictionary, (2nd ed) Oxford, Clarendon Press, 1989, Vol 6 at p 1114).
[21] Ms Taylor pointed out that the Legal Aid Review Panel had been aware of the decision in Sweeney, and had indeed referred to it in its decision.
[22] Ms Taylor also referred to the decision in Bates v Legal Services Board [1999] NZAR 91, a case decided by a full Court of the High Court under the Legal Services Act 1991. Section 45(4) of that Act provided that a District Sub-committee might grant an exemption on property recovered in proceedings from a charge in respect of unpaid contributions under the Act only if of the opinion that it would be “just and equitable” to do so. Ms Taylor argued that the case was of continuing assistance, notwithstanding the repeal of the 1991 Act, because of the similarity of s
45(4) to s 37(1)(d) of the Legal Services Act 2000. As has been seen, that paragraph refers to “justice and fairness”. In Bates, the full Court held the scheme of the Act was to impose an initial charge on the judgment debt, but to permit the Committee to grant an exemption from that charge if just and equitable in all the circumstances. A charge was the normal outcome; and exemption the exception. The words “just and equitable” were to be construed in that context.
[23] Ms Taylor also relied on what the Court said at 96:
The demands upon legal aid funds constantly exceed what is available. We do not know to what extent, but the Committee would. Every charged dollar from which the appellant was exempted was a dollar less for other legal aid applicants, whose claims may also be highly meritorious, or needs urgent. The object of the Act was achieved in relation to the appellant. As a result of being granted legal aid, she was able to bring her proceeding and recover damages, albeit limited by the size of the defendant’s estate. And that is the rub. But does that factor make it unjust and unequitable not to require other applicants for legal aid, in effect to subsidise the appellant’s recovery? The
circumstances relevant in deciding what is just and equitable in terms of s 45(4) surely extend beyond those personal to the appellant.
[24] Ms Taylor argued that these observations too remained relevant under the present legislation and that “justice and fairness” under s 37(1)(d) involved the consideration of wider circumstances than those relating to the appellant.
Discussion
[25] In view of the breadth of Ms McCartney’s submissions, Ms Taylor was right to emphasise that appeals to this Court from decisions of the Legal Aid Review Panel can only be advanced on the basis that the Review Panel’s determination is wrong in law. It is not a case of this Court reaching its own view on the facts and substituting its decision for that of the Panel.
[26] On the face of it, the questions of law raised by the appeal rest on an assertion that the Review Panel did not consider the circumstances relied on by the appellant as establishing both hardship and that it was just and equitable to write off the debt. I describe it as a “debt” because that is how s 31 of the Legal Services Act describes it. Of the sections which follow, s 32(1) provided (at the relevant time) that the proceeds of proceedings to which a grant of legal aid relates are subject to a charge in favour of the Agency for the amount of any unpaid contributions and the repayment payable under the grant. Section 33 enables the Agency to exempt property from the charge, which it may do if it considers that, having regard to the value or nature of the property and all other relevant circumstances, it would be “just and equitable” to do so. However, the debt would remain, unless waived under s
37(1) which has earlier been set out.
[27] The 2000 Act is different from the Legal Services Act 1991 in a number of material respects. The 1991 Act, however, provided in a similar way that required contributions were recoverable as a debt due to the Board. There was no direct equivalent in the 1991 Act of the provision which is now s 37. Section 50 of the
1991 Act provided in a more limited way for the writing off of part of the date in relation to “domestic proceedings” where enforcement of the obligation to make the
contribution would jeopardise a reconciliation. Domestic proceedings were expansively defined in s 2 of the Act.
[28] Section 37 of the 2000 Act contains a much wider power to write off in the sense that it is no longer confined to domestic proceedings (mentioned in s 37(1)(b)) but is also exercisable in the circumstances set out in paragraphs (a), (c) and (d). Nevertheless, I think it fair to say, given the scheme of the Act, and the maintenace of other key features of the previous legislation, that payment of the required contributions by legally aided persons will remain the norm, and conversely, the grant of a waiver under s 37 will not be the norm.
[29] Ms McCartney submitted to the contrary. She argued that that approach was wrong in law, and that to hold that recovery of costs should be the norm would be a radical departure from the “constitutional right of an applicant in need to receive legal aid for access to the Court”, as well as being contrary to the scheme and provisions of the Act. She contended the scheme of the Act was to allow a grant of aid and that its provisions contemplated a person such as the appellant making a contribution without requiring that that be the case. She is correct insofar as s 15(1) provides that a grant of legal aid “may” be subject to a condition requiring payment of a contribution by the legally aided person. In the case of civil proceedings, the grant “may” also be subject to a condition that the aided person will authorise a charge to be registered in favour of the agency over specified property of the aided person, as security for payment of the contribution.
[30] In the present case there was a requirement both that the appellant pay a contribution, and that a charge be registered as security. There is no challenge to those requirements having been properly made. In those circumstances I consider that it remains appropriate to state that payment of the required contributions will remain the norm and the grant of a waiver will not be the norm.
[31] I turn then to the first question raised by the appellant which is whether the Review Panel wrongly failed to consider the circumstances relied on by the appellant as establishing hardship. In this respect, it is to be noted that the Review Panel had before it the appellant’s application for review which dealt extensively with the fact
that the result of the litigation in the Family and High Courts was that the appellant had had to sell her home, was effectively only subsisting and in fact forced to live on her capital because of the deficit between her income and expenditure.
[32] The Review Panel also had before it a letter from the Agency dated 30
August 2007 in support of its original decision which directly confronted the financial issues raised by the appellant. The observations made in the Agency’s letter included the following:
25. If the applicant were required to repay the debt of $11,165.27 out of her savings of $283,600 she would be left with a capital of over $272,000. This is considerably more than many legally aided persons have at their disposal and in the Agency’s opinion does not amount to a situation of hardship.
26. The Agency also considered the information on file against the justice and fairness criteria. Given that the debt is just under 4% of the applicant’s capital, repayment of the debt would not substantially eat into her assets. The Agency noted that the appeal was dismissed. The Agency does not find it unreasonable that unsuccessful appellants pay their own legal costs. It believes that there was no reason for intervention by way of reducing the debt under the justice and fairness criteria.
[33] I have earlier quoted from relevant parts of the Review Panel’s decision. At paragraph [20], the observations made by the Panel clearly showed that it had considered the material that both the appellant and the Agency had placed before it.
[34] I do not think it is possible in the circumstances to sustain an argument that the Review Panel failed to consider the circumstances relied on by the appellant as establishing hardship. The position, rather, is that, having considered the circumstances, the Panel did not consider that they established hardship.
[35] Ms McCartney was critical of the Review Panel’s statement about the number of New Zealanders over the age of 65 who are reliant on National Superannuation as their only source of income. She described the statement as “quite extraordinary” and alleged that it had been made without reference to any evidence or statistics. However, it was not a ground of appeal that the Review Panel had considered matters of which it did not have evidence, and this Court does not have the role of correcting errors of fact in appeals such as this. For all I know, that
information may in any event be within the knowledge of members of the Review Panel, acquired as part of their expertise in dealing with matters of this kind. Certainly, it does not seem obviously wrong to maintain that a substantial majority of persons aged over 65 will be dependent on New Zealand Superannuation as the Review Panel maintained.
[36] Ms McCartney was also critical of the observation that those people who are reliant on New Zealand Superannuation as their only source of income did not “suffer hardship in that their circumstances are not unusually hard to bear.” That was, of course, to adopt the language of the judgment of Williams J in Legal Services Agency v Sweeney which was binding on the Review Panel. I infer from the Review Panel’s observations that it was of the opinion that if a waiver were to be granted under s 37(1)(a) of the Legal Services Act, it ought to be on a basis other than the fact that the applicant was reliant on National Superannuation. The reasoning was that since many people over the age of 65 are in exactly the same position, the circumstance could not be described as “unusually hard to bear”.
[37] I do not discern any error of law in that approach, which is consistent with the fact that normally recipients of legal aid under the Act will be required to make the statutory repayments. I emphasise, however, that the alleged error here is of failure to take into account the appellant’s personal financial circumstances. I do not consider that the appellant can demonstrate that there was such a failure.
[38] I have reached the same view in respect of the second error of law alleged, which is very similar. The contention is that the Review Panel did not consider the circumstances relied on by the appellant as establishing that it was just and equitable to write off the debt. A major emphasis of the appellant’s argument in this respect was the perceived unfairness of the outcome of the proceedings in the Family Court as well as the general misfortune caused by the break-up of the appellant’s marriage, the fact that she had supported her husband as a younger man throughout his successful career and that, after he had left her and during the litigation in which she was pursuing ongoing maintenance payments, he had left what had been a lucrative position to become the proprietor of a book shop. A contrast was drawn between the
appellant’s previous position , financial security and lifestyle with the circumstances
that she must now face after the end of the marriage.
[39] But once again, the appellant’s arguments were fully addressed in material that Ms McCartney put before the Review Panel as part of the application for review. For example, included in the material was the following:
As a result of the decision of the High Court, on appeal, by which the Judge dismissed the application for s 15 compensation order under the Property (Relationships) Act and declared that any application for extension of maintenance needed to be made under s 64 of the Family Proceedings Act
1980, the applicant is obliged to give up on litigation. It remains my opinion as counsel that the refusal to provide a s 15 compensation order was, with
respect to the High Court Judges, appealable. The applicant is a Z v Z (No. 2)
[1997] 2 NZLR 258 CA category and the purpose of the amendments to the
Property (Relationships) Act was to provide for people in the position of the applicant. The other option of the applicant was to seek maintenance – but the applicant was not in a position to bring fresh proceedings in the Family Court – which was required as a result of the Court’s decision for an extension of maintenance beyond the period granted by the Family Court, a new application had to be made under s 64.
Given the decision of the Court, the applicant had no option but to sell her home as mortgage repayments were beyond her means. Had she not sold her home, there would be no question of Legal Services requiring repayment of the debt.
[40] In its letter of 30 August 2007 placed before the Review Panel, the Legal
Services Agency observed:
26.The Agency also considered the information on file against the justice and fairness criteria. Given that the debt is just under 4% of the applicant’s capital, repayment of the debt would not substantially eat into her assets. The Agency noted that the appeal was dismissed. The Agency does not find it unreasonable that unsuccessful appellants pay their own legal costs. It believes that there was no reason for intervention by way of reducing the debt under the justice and fairness criteria.
[41] In its decision of 11 December 2007, the Review Panel accepted the Agency’s submission that the applicant’s contribution should not be written off for reasons of justice and fairness. For ease of reference, I repeat the Panel’s observations, at [22], that:
It was her choice to appeal to the High Court against a Family Court decision with which she was not satisfied, and it is neither unjust nor unfair to expect unsuccessful appellants to meet their legal costs. That the Agency
considerably reduced the sum required by way of contribution in its final assessment is indicative of its desire to recognise that the applicant had, to some degree, suffered misfortune.
[42] Ms McCartney criticised those words as implying that every legal aid recipient who had been unsuccessful in Court proceedings would not be entitled to a waiver.
[43] I do not consider that the Review Panel was purporting to lay down an inflexible rule to that effect. Rather, I consider that the Review Panel was responding to the main thrust of the appellant’s argument under s 37(1)(d), namely that the result of the Court process had produced an unfair result. Essentially, the appellant was putting that forward as a basis upon which the Agency should write off the debt. If there were to be any general approach along those lines, of course, unsuccessful litigants would be favoured over those who had been successful when it came to the exercise of the s 37 discretion. It would obviously be wrong for there to be any such rule, and I consider that perception lay behind what the Review Panel said in this part of its decision.
[44] There is, however, no substance in the appellant’s second alleged error of law. Both the materials that were before the Review Panel, and the reasoning in the decision show that the appellant’s argument for a waiver under s 37(1)(d) of the Act was considered by the Panel.
[45] I do not consider that any other error of law has been established on the part of the respondent. In the end, the appellant has suffered a significant set back in terms of her standard of living as a consequence the dissolution of her marriage at a stage when she was no longer middle aged. She was dissatisfied with the result of the litigation commenced in the Family Court and pursued in this Court on appeal and it is possible to feel sympathy for her in the circumstances in which she now finds herself. None of this, however, means that there was any error of law in the decision of the Legal Services Agency and it is not for this Court to substitute its decision on questions of fact, given the limitations inherent in this Court’s role being limited to questions of law.
Result
[46] For the reasons I have given the appeal is dismissed.
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