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Exceptional case funding needs reform, High Court rules

Published 15/07/2015

The High Court ruled that exceptional case funding needs to be changed during a test case
The High Court ruled that exceptional case funding needs to be changed during a test case

A scheme Government ministers intended as a safety net to ensure vulnerable people get access to justice is not working, the High Court has ruled in a test case.

A judge said a number of aspects of the exceptional case funding (ECF) scheme operated by the Legal Aid Agency (LAA) in the wake of significant legal aid cuts in 2013 are "not in accordance with the law" and must be changed.

The LAA is an executive agency of the Ministry of Justice. The ECF was introduced as a safety net under section 10 of the Legal Aid Sentencing and Punishment of Offenders Act 2012 (LASPO) for those who lack capacity to manage their own affairs.

The scheme was intended for people whose human rights or European Union rights were at risk of being breached if they were not given legal aid.

Mr Justice Collins, sitting in London, declared: "As will be clear, I am satisfied that the scheme as operated is not providing the safety net promised by ministers and is not in accordance with section 10 in that it does not ensure the applicants' human rights are not breached or are not likely to be breached."

He said the LASPO reforms were having a particularly adverse effect on family cases, with an increase in litigants "who should have been granted legal assistance but have to appear in person".

The judge granted the LAA and the Lord Chancellor permission to appeal against his ruling because of its widespread importance.

Government lawyers gave the judge assurances that his ruling would be put into effect pending any appeal.

In a 109 paragraph written ruling, the judge said the LASPO reforms were meant to limit the grant of legal aid with a view to saving public funds.

He said that, following a legal challenge in the case of "R(G)", it was hoped that the "abysmally low" rates of grant of ECF would be increased "to a reasonable level".

The judge added: "That has not happened. Thus the scheme is not working as it should."

ECF application forms for legal aid were "far too complex" for people having to fill them in without the help of lawyers. The judge called for more "user friendly" forms to be provided.

He said consideration should also be given to enabling lawyers to do work to see whether a claimant had a case which should be granted legal assistance.

The "merits test" applicants had to pass before being granted legal assistance was also flawed.

The judge said: "The rigidity of the merits test and the manner in which it is applied are in my judgement wholly unsatisfactory. They are not reasonable.

"There is a further defect in the failure to have any right of appeal to a judicial body where an individual who lacks capacity will otherwise be unable to access a court or tribunal."

The case was brought by the Official Solicitor of England and Wales on behalf of a blind Nigerian national referred to as "IS", who has lived in the UK for over 13 years and suffers from profound cognitive impairment.

IS wanted funding to enable him to apply to the Home Office to clarify his position in the UK as an immigrant but was refused ECF.

He later won his case, but the Official Solicitor decided that, even though his individual challenge had become academic, the legal action should be continued because of concerns that the ECF scheme was failing properly to deal with other claims from both children and adults who lacked capacity.

The judge said in his ruling: "The importance of the issues raised in this claim has justified its continuation in what in effect amounts to a test case."

He gave the LAA and the Lord Chancellor permission to appeal against his ruling, saying: "This has a very considerable and important widespread effect. Therefore it is clearly appropriate to grant leave to appeal."

The Official Solicitor was represented by the legal charity Public Law Project (PLP) and director Jo Hickman welcomed today's ruling, saying: "PLP has long been concerned about the practical operation of the ECF scheme.

"This welcome judgement will help to protect the interests of the many children, patients, and other vulnerable adults who would otherwise be unable to achieve justice."

A Ministry of Justice spokesman said: "We are appealing this judgement."

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