This second story of injustice is typical of the many instances when the Legal Aid Agency refused exceptional case funding in a case which cried out for the help of a lawyer.
The story of MM
MM is severely disabled. He suffers from cerebral palsy and is dyslexic. He cannot speak and relies upon a basic electronic voicebox to communicate. He required Exceptional Case Funding to allow him to be represented in private law family proceedings that would determine the level of contact he would have with his children.
MM approached the Public Law Project’s exceptional case funding project for help after an initial application for such funding had been unsuccessful. He had been unable to navigate the application process himself in order to apply again without legal assistance.
The Public Law Project obtained a pro bono advice from counsel as to the merits, and the complexity, of MM’s family case, which confirmed that the case was both meritorious and complex. A second application for Exceptional Case Funding was submitted for MM, with the assistance of the Public Law Project. This application was refused on the basis that, in the Legal Aid Agency’s view, MM’s family case did not meet the merits test or the Exceptional Case Funding test (the decision was made before the high test used for such funding was disapproved by the High Court in the case of Gudanaviciene and ors).
An application for review was submitted to the Legal Aid Agency, again with the assistance of the Public Law Project, but the Agency maintained their refusal to grant Exceptional Case Funding on the basis that the merits criteria were not satisfied. Shortly after this, the judge in MM’s family proceedings made an order recording his opinion that MM should be granted legal aid.
Notwithstanding these judicial observations, it was necessary for the Public Law Project, on behalf of MM, to issue judicial review proceedings against the Legal Aid Agency before they finally agreed to grant Exceptional Case Funding. This grant was made over a year after MM made his first application.
As a result he was unable to seek appropriate contact with his children for over 12 months.
Is this justice?
And how much did the Legal Aid Agency’s procrastinations cost the taxpayer?
In refusing to accept that his case was meritorious, the Legal Aid Agency had argued that it was unclear how he could be granted contact without any support being provided by the Local Authority, but that the family court was not the appropriate forum for determining such issues. Instead they said that he should challenge any refusal to support him through judicial review.
MM followed their advice and accordingly requested such support from the Local Authority and issued judicial review proceedings when it was refused. However, the judicial review claim was certified as being ‘totally without merit,’ on the basis that the correct forum to determine the support issues was within the proceedings in the family court.