For my 16th story of injustice, I am indebted to the Public Law Project, of which I am the patron.
Although the former rigist rules for exceptional case funding (ECF) have now been relaxed a little after the intervention of the courts, this story, taken from an early stage in a lamentable saga, shows why the Legal Aid Agency and all its works incurred such widespread odium while Mr Grayling was Lord Chancellor.
Unbelievable – but true
BXA
BXA was 52 years old and had been in this country for approximately 16 years. She had a history of street homelessness, a diagnosis of paranoid schizophrenia, had been detained under the Mental Health Act 1983 on several occasions, and had struggled to give a coherent account of her experiences. BXA required ECF in order that she could be represented in her immigration appeal in which she would need to argue that her removal would breach her rights under Article 8 of the European Convention on Human Rights.
An application for ECF was made for BXA, with our assistance, and marked as urgent. An immigration specialist had assessed the prospects of BXA succeeding in her appeal as good, but the LAA refused the application on the basis that, in their view, the prospects were poor.
An application for a review of the refusal was submitted to the LAA, but they upheld the refusal, again on the grounds that the prospects were poor. The LAA’s decision letter referred extensively to immigration case-law and asserted that the application had failed to demonstrate why BXA’s Article 8 ECHR rights would be breached if she was removed.
Following this, PLP instructed experienced counsel to prepare an advice, pro bono, on the merits of BXA’s immigration case. Counsel advised that the case was meritorious.
We sent this advice, together with a pre-action letter, to the LAA following which (nearly four months after BXA’s first application was made) the LAA granted her ECF.
We understand that BXA’s immigration appeal was successful.
Commentary
JustRights told the Bach Commission:
During the passage of the LASPO Bill, ministers repeatedly reassured MPs and Peers from all parties who were worried about the prospect of children and young people being denied access to advice and representation that an expanded Exceptional Case Funding scheme would provide an adequate safety net.[1] The Government’s pre-LASPO estimates of the percentage of ‘out of scope’ cases likely to be readmitted under the Exceptional Case Funding scheme were modest,[2] but nonetheless implied at least 847 children and 4,888 young adults being granted exceptional funding each year.
In the event, this “safety net” has proved inaccessible and unfit for purpose.[3] The Ministry of Justice’s data shows that only 8 children and 28 young adults were granted legal aid under the Exceptional Case Funding Scheme between October 2013 and June 2015.[4]
Thus, despite very recent data suggesting some relaxation of the Exceptional Case Funding Scheme,[5] it is clear that it has acted as a safety net for but a tiny proportion of those children and young people whose cases have fallen out of the scope of civil legal aid as a result of LASPO. Some legal aid providers specialising in working with children and young people have reported giving up applying for exceptional funding altogether as they consider it a waste of valuable time.[6]
Ben Hoare Bell LLP told us:
The exceptional case funding option which was identified to the United Nations CEDAW[7] Committee as being the “safety net” for women unable to obtain legal aid by proving they are victims of violence has been proved to be completely ineffective providing no safety net whatsoever and the recent research done by Rights of Women show that up to 43% of genuine victims of violence against women cannot access the proof that they need to obtain legal aid.
And in spite of the softening of the gateway criteria the Community Law Partnersghip told us only three months ago that:
Despite the [amendments], ECF is still relatively rarely granted and a lot of legal aid providers are not willing (on a pro bono basis) to expend the enormous time and effort involved in attempting to obtain ECF. Thus ECF remains an ineffective remedy.
If I were the new Lady Chancellor, I would give the overhaul of the ECF arrangements a very high priority. In a country in which, for the first time, the Prime Minister, the Home Secretary and the Lady Chancellor are all women, the scale of the hardship that LASPO has caused to women and children cannot be overstated. It deserves their early attention.
Otherwise justice for women and children will continue to suffer.
[1] For example, Lord McNally, then a justice minister with responsibility for legal aid, stated on 16th January 2012 “where a child brings an action without a litigation friend, this will be an important factor in deciding whether they have the ability to present their case.” Hansard, 16 Jan 2012 : Column 447
[2] The Ministry of Justice’s ‘Impact Assessment Annex A: Scope’ (Reform of Legal Aid in England and
Wales: The Government Response (London, TSO, 2011), para 10, Tables 1 and 3 show forecasted reductions in the volume of cases as a result of the legal aid reforms.
[3] M. Spurrier, Exceptional funding: a fig leaf, not a safeguard. (Public Law Project, 2013).
[4] Parliamentary answer by Lord Faulks, 17th November 2015.
[5] ‘Legal aid statistics and the cuts that keep on cutting’
[6] See para. 59, House of Commons Justice Committee, Impact of changes to civil legal aid under Part 1 of the Legal Aid, Sentencing and Punishment of Offenders Act 2012: Eighth Report of Session 2014–15 (UK Parliament, 2015).
[7] Convention on the Elimination of Discrimination Against Women.
Henry Brooke 