Exceptional Case Funding: safety net or fig leaf?

23 July 2015

Last week, in the High Court case of IS v The Director of Legal Aid Casework & Anor [2015] EWHC 1965 (Admin) (15 July 2015) (IS) Mr Justice Collins declared the current operation of the Exceptional Case Funding (ECF) Scheme to be unlawful and described the system as “wholly deficient”. The Public Law Project, who represented the claimant, has said the judgment will have profound implications for access to justice.

The ECF Scheme was introduced as part of the Legal Aid Sentencing and Punishment of Offenders Act 2012 (LASPO). It was intended to alleviate the impact of the vast cuts to civil legal aid which came into force on 1 April 2013. Lord McNally, sponsoring Minister in the House of Lords declared ECF to be “a safety net”. Its purpose was to ensure that the most vulnerable in society would not be deprived of access to justice.

Post-LASPO, the Judiciary have expressed their disquiet in unusually strong terms in cases in which individuals had been refused legal aid for inquests, family and immigration law matters. Mr Justice Mostyn in the Family Division described the ECF scheme to be not so much a “safety net” but rather a “fig leaf”.

Criticisms are directed at the “gross inequality of arms” and also challenges of whether the cuts to legal aid are resulting in any savings at all once the cost of dealing with litigants in person has been considered.

Challenges to ECF Guidance

Section 10(3) of LASPO requires ECF to be granted to individuals in circumstances where otherwise there would be a breach of their rights under the European Convention on Human Rights (the Convention) or a breach of European Union (EU) rights. A number of challenges have been brought against the application of section 10(3) and decisions by the Legal Aid Agency (LAA) to refuse ECF.

Letts, R (on the application of) v The Lord Chancellor & Ors [2015] EWHC 402 (Admin) (20 February 2015) (Letts) dealt with the guidance issued in relation to ECF for inquests. Mr Justice Green found that the guidance was “materially misleading and inaccurate” in that it suggested that ECF should only be provided in cases where there was evidence of an “arguable breach” of Article 2 ECHR by the State. This guidance failed to acknowledge the clear line of authority which establishes that in certain circumstances an investigative duty under Article 2 arises automatically, independent of evidence of an arguable breach. Such circumstances include but are not limited to the deaths in custody and people detained under the Mental Health Act. The guidance meant that applications had been refused by the LAA in circumstances where the applicant had a clear entitlement.

The case of IS arose from an earlier judicial review challenge with respect to non-inquest ECF commenced in 2014 in the High Court case of Gudanaviciene & Ors, R (on the application of) v The Director of Legal Aid Casework & Or [2014] EWCA Civ 1622 (15 December 2014)  (G).  The case involved six applicants (including Mr S) who had been refused legal aid in support of their immigration application. In G, Mr Justice Collins concluded that the guidance was in large part “unlawful” on the grounds that it did not protect Convention rights under Article 8 ECHR and the threshold set by the guidance was too high. He also quashed the Director’s decision to refuse ECF in respect of each claimant.

Five out of the six claims were subsequently considered by the Court of Appeal in Gudanaviciene & Ors v Director of Legal Aid Casework & Anor [2014] EWHC 1840 (Admin) (13 June 2014) (Re G). The Court substantially upheld the original decision in a complex and lengthy judgment available here. In very brief summary, the Court confirmed:

  • The guidance was misleading and incompatible with Convention and EU rights as it implied that refusal of legal aid would only breach Article 6 ECHR in “rare and extreme cases” when this was not the case;
  • The LAA should not apply “a very high threshold” in these cases;
  • Procedural protections of Article 8 ECHR apply to immigration cases; and
  • The ultimate issues to be decided in determining a claim to funding were effectiveness and fairness.

The case of IS

The case of IS was originally part of the G application and initially appealed by the LAA as part of Re G before the LAA conceded. Mr S is a Nigerian national who was refused ECF for his immigration application. He lacks litigation capacity, is blind and suffers from profound cognitive impairments which render him unable to take care of himself.

In Re G the Court of Appeal commented that “It is impossible to see how a man suffering from his disabilities could have had any meaningful involvement in the decision-making process without the benefit of legal representation”.

Notwithstanding the LAA’s concession in respect of IS, the further case was brought by the Official Solicitor on the basis that it was in the wider public interest for other vulnerable litigants. In his judgment, Mr Justice Collins held that the ECF scheme as applied means that “those who are unable to pay for legal assistance are suffering in a way that Parliament cannot have intended”. It was not providing the “safety net” promised by Ministers.

Mr Justice Collins drew attention to the fact that prior to the introduction of LASPO the Government estimated that there would be 5,000 to 7,000 ECF applications for legal representation with 3,700 grants of funding in one year. In reality, the actual rate of applications has been a fraction of that. Until the decision of G in June 2014, the success rate in grants of non-inquest ECF was little over 1% which has since increased to around 13% at the time of writing.

The main problem with the ECF scheme included the nature of the application forms which are complex and require excessive information and legal assistance to be completed. Mr Justice Collins defined the critical question in cases where applications for ECF have been made as: whether an unrepresented litigant is able to present his case effectively and without obvious unfairness.

It is clear that the fig leaf has fallen. As time passes and the full effects of LASPO come into view, we can expect continued criticism from the Judiciary with respect to Government obstacles to accessing justice. Certainly insofar as ECF is considered, the courts have spoken and found the Ministry of Justice wanting. Whether Mr Gove will herald a change in approach post-election is yet to be seen. In the meantime, we await the practical impact of the IS judgment for ECF and access to justice.

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