I have just completed a review of the statistics published by the Legal Aid Agency for the first three years of the new scheme. They reveal a stop-go-stop situation, and a need for an expert in-depth study, involving experts in ECHR and EU law, which is designed to reveal the opportunities for using this facility, particularly in “out-of-scope” fields of practice outside family law and immigration law.
Exceptional Case Funding in non-inquest cases
Statistics for the first three years of LASPO
This is a good moment to take stock of the operation of the Exceptional Case Funding (ECF) scheme. It was introduced in April 2013 pursuant to section 10 of LASPO, and we now have statistics covering the first three years of the operation of the scheme (in each case covering a period from 1st April in one year to 31st March in the next). Family law and immigration cases have always furnished the largest number of applications, as appears from the following table:
The number of applications granted was as follows:
The proportion of applications which were successful, in percentage terms, was:
The poor success rate in the first year was in large part attributable to the fact that until Mr Justice Collins’s decision in Gudanaviciene (which I will call G) Legal Aid Agency (LAA) caseworkers were instructed by the Lord Chancellor to use some very restrictive guidance on the effect of the ECHR which did not correctly state the law, as both Mr Justice Collins (in June 2014) and the Court of Appeal (in December 2014) were to hold. The LAA has also said that in the early days a number of applications were rejected because they covered issues which were already “in scope” for legal aid, or were refused because they provided insufficient information for the LAA’s purposes.
The improved success rate in the second year would have reflected the fact that for three quarters of that year case workers were instructed to use the more relaxed approach which was indicated by those two judgments.
Following the Court of Appeal judgment new guidance, published on 9th June 2015, dictated the approach that caseworkers were to adopt in future. It was the outcome of the first two years of the scheme which fell to be considered in the subsequent litigation known as IS, in which in May 2016 the Court of Appeal, by a 2-1 majority, reversed Mr Justice Collins’s decision in July 2015 to the effect that the way in which the scheme had been devised and operated was inherently unfair.
The vastly improved success rate in the third year for family law and immigration cases would have been attributable in large part to the fact that for the last eight months of that year the LAA followed that part of the first instance decision of Mr Justice Collins in IS which held that the criteria for judging the merits of legal aid applications (as set out in what I will call “the Merits Regulations”) were unlawfully restrictive.
Amendments to those Regulations came into force towards the end of July 2015, but this part of his judgment was unanimously reversed by the Court of Appeal in May 2016, and further amendments have now been made to the Merits Regulations which as from 22nd July 2016 largely restore the position as it stood before Mr Justice Collins’s intervention. We have no statistics yet that are later than 31st March 2016, so that we cannot yet measure the effect of this part of the Court of Appeal’s May 2016 decision in IS.
In addition to the other changes a new, much shorter, ECF application form was introduced in November 2015, which allows for the first time for the possibility of applying for funding to investigate whether an ECF application is viable, and asks five quite simple additional questions that are directed to the issues identified in the Court of Appeal’s judgment in G.
The present state of the law
The present state of the law can be summarised in these terms:
By section 10 of LASPO legal services which are not “in scope” will be made available if the LAA makes an “exceptional case determination” and also determines that the applicant qualifies for those services (by satisfying the means test and the merits test, to which reference is made in section 11).
An “exceptional case determination” will be made in two different situations.
The first arises where the LAA decides that it is necessary to make legal services available to the applicant because failure to do so would be a breach of his/her Convention rights. The other arises where the LAA decides that it is appropriate to make them available in the particular circumstances of the case, having regard to any risk that failure to do so would be a breach of his/her Convention rights.
In G the Court of Appeal held that the Lord Chancellor’s Guidance was wrong in two main ways. First, it referred to the cases in which ECF might be available as “rare”, and went on to say that the threshold of the requisite breach of Convention rights was “very high”. In this context the Guidance referred to “very rare circumstances”, and suggested that it applied to cases where the withholding of legal aid would make the assertion of the claim “practically impossible”.
Secondly, the Guidance said in terms that the Lord Chancellor did not consider that there was anything in current case law that would put the State under a legal obligation to provide legal aid in immigration proceedings in order to meet the procedural requirements of ECHR Article 8.
Paragraph 46 of the Court of Appeal’s judgment in G contains a succinct summary of the correct approach to cases where the applicability of ECHR Article 6 is in issue:
The Convention guarantees rights that are practical and effective, not theoretical and illusory in relation to the right of access to the courts;
The question is whether the applicant’s appearance before the court or tribunal in question without the assistance of a lawyer was effective in the sense of whether he or she was able to present the case properly and satisfactorily;
It is relevant whether the proceedings, taken as a whole, were fair;
The importance of the appearance of fairness is also relevant: simply because an applicant can struggle through “in the teeth of all the difficulties” does not necessarily mean that the procedure was fair;
Equality of arms must be guaranteed to the extent that each side is afforded a reasonable opportunity to present his or her case under conditions that do not place them at a substantial disadvantage viz-ἁ-viz their opponent.
And in paragraph 56 of that judgment the Court of Appeal summed up the position in these terms:
“It can therefore be seen that the crucial question is whether an unrepresented litigant is able to present his case effectively and without obvious unfairness. The answer to this question requires a consideration of all the circumstances of the case, including the factors which are identified at paras 19 to 25 of the Guidance. These factors must be carefully weighed. Thus the greater the complexity of the procedural rules and/or the substantive legal issues, the more important what is at stake and the less able the applicant may be to cope with the stress, demands and complexity of the proceedings, the more likely it is that article 6(1) will require the provision of legal services (subject always to any reasonable merits and means test). The cases demonstrate that article 6(1) does not require civil legal aid in most or even many cases. It all depends on the circumstances.”
The Lord Chancellor’s current guidance to caseworkers
In the June 2015 re-issue of the Guidance the gist of paragraph 56 of the judgment in G is reproduced in paragraphs 19 and 20.
Paragraph 21, headed “How important are the issues at stake?” adjures caseworkers to consider whether the consequences of the case at hand are objectively so serious as to add weight to the case for the provision of public funds. It suggests four questions that might be asked:
What are the consequences to the applicant of not bringing/not being able to defend proceedings?
Does the case merely involve a claim for money, or does the claim relate to current (as opposed to historic) issues of life, liberty, health and bodily integrity, welfare of children or vulnerable adults, protection from violence or abuse, or physical safety?
If the claim is financial, what are the sums at stake?
Does the claim relate to adjustments, care provision or medical equipment without which the applicant cannot live an independent life?
Paragraph 22 of the Guidance (headed “How complex are the procedures, the area of law or the evidence in question?”) adjures caseworkers to consider whether the proceedings in question involve unusually complex issues of fact, procedure or law. It suggests that the following questions might be asked:
Does the case turn on issues of fact that lie within the applicant’s own knowledge?
Will there be a significant number of witnesses or a large volume of evidence
To what extent have the facts in the case already been explored? (for example, has the case already been through other tribunals or hearings, and have the issues been fully explored and the key point or points to be determined clearly identified?)
Will expert evidence (e.g. complex medical evidence) have to be obtained and tested in cross-examination? If so, will multiple experts be required? How relevant is the expert evidence to the case itself? Has the court given permission for expert evidence to be submitted under the relevant rules, for example FPR 25.4(1)?
How complex is the procedure in the forum where the case takes place? How clear and straightforward are the relevant rules of procedure?
Is the case before a court or a higher court? If so, are the rules of procedure in that court nonetheless clear and unambiguous?
Is the case before a tribunal that possesses specialist or expert knowledge which can assist the applicant?
Does the case in question involve any particularly complex issues of law?
Paragraph 23 of the Guidance (under the heading “How capable is the applicant of presenting their case effectively?”) adjures caseworkers to consider whether the applicant would be incapable of presenting their case without the assistance of a lawyer. After some general comments, the following questions are suggested:
How complex is the case?
Has the individual received prior assistance from a lawyer? (Although such assistance should not be treated as an absolute bar; it will depend on the particular circumstances of the case, the nature and extent of the assistance afforded)
How long is the case likely to last?
What is the applicant’s level of education?
Is the degree of emotional involvement that the applicant is likely to have in the issues in the case incompatible with the degree of objectivity expected of advocates in court?
Does the applicant have any relevant skills or experience (either in the area of law or the factual subject matter)?
Will the case be heard in a tribunal or other venue that is well used to dealing with litigants in person?
Is there a Mackenzie friend who could be granted permission to speak on behalf of a party to proceedings?
Does the applicant have English as a first language? If not, what is the applicant’s level of skill in English? Will the court or tribunal be able to assist with interpretation and/or the translation of documents? Could family or friends who do not have an interest in the case provide interpretation/translation?
Does the applicant have any special caring responsibilities which may represent a genuine barrier to the presentation of the case?
Does the applicant or their carers/dependants have any relevant disabilities? Would the absence of legal representation put a disabled person at a disadvantage vis-à-vis their opponent?
Paragraphs 25 and 26 of the Guidance suggest questions that might be asked in relation to child applicants or adult applicants who lack capacity, and paragraphs 27-29 contain guidance on applications that rely on ECHR Article 8, in terms similar to those mentioned under ECHR Article 6.
Paragraph 30 dismisses any possible effect of ECHR Article 13, and paragraphs 31 to 35 contain guidance on cases in which the applicant relies on enforceable EU rights in relation to the provisions of civil legal services in terms so dense that caseworkers would need help from some other source in order to understand how such rights might arise in a way that is different from the rights conferred by the ECHR.
Paragraphs 36 to 39 remind caseworkers that if they conclude that legal aid must be provided under LASPO s 10, this should be limited to the minimum services required to meet the obligation under ECHR or EU law. The value of Legal Help (as opposed to legal presentation) is stressed in this context.
I have set out the different elements of caseworkers’ current guidance at some length, because although this edition of the Guidance is a very marked improvement on its predecessor, it demonstrates vividly the very large volume of information caseworkers will need to receive if an application is to succeed, quite apart from all the information the LAA requires when satisfying itself that the application also satisfies the merits test (where this is necessary) and the means test. In IS Laws LJ recognised (at para 55) that the scheme was heavily dependent on the participation of legal aid providers. However, no lawyer will be paid anything by the LAA for his/her services unless the application is successful.
Specific fields of law
An Annex to the Guidance contains advice on the following specific categories of case:
- Private Family Law
- Business Cases
- Clinical negligence
- Human Rights
- Welfare Benefits (including asylum support)
In all these categories of case the Guidance provides a reminder that section 10 is only engaged under ECHR Article 6 in relation to the determination of civil rights and obligations, or, in immigration cases, where the process will engage the ECHR Article 8 right to respect for family and private life.
Extracts from the earlier guidance were then repeated, in so far as they were believed to be relevant. Although the evidence given to the Bach Commission showed the extent of the hardship caused by the fact that a category of case is “out of scope” so that legal aid is only available under the ECF scheme, the first three years of LAA statistics show how little effective use has been made used of the safety net ECF was supposed to provide. See the following table:
|Housing/Land law||Applications||Grants||Success rate (%)|
The fact that except in family and immigration cases only 37 people in a country of over 60 million have been granted access to the “safety net” in 36 months, in spite of all the relaxations mentioned in this paper, speaks for itself. Parliament was told there would be an effective safety net, and the executive (in the form of the Ministry of Justice and its executive agency (the LAA)) has conspicuously failed to provide it.
Part of the difficulty has lain in the fact that the scheme is much too sophisticated for its intended purpose. Early evidence suggested that each application took between 4 and 8 hours to prepare, and a full day for a caseworker to analyse, even though the prize might only be an award of legal help at a small fixed fee. It has now been accepted that it is advantageous to secure a lawyer’s help in completing the application form, and there is overwhelming evidence that very many legal aid lawyers regard the exercise as so uneconomic that they are not willing to provide that help. The LAA has simplified the form, and more lay applicants are now using it, but I have not yet been able to ascertain the extent to which their applications have been successful.
Unless some effective mitigating steps are taken now, it is inevitable that the more favourable success rates for family and immigration cases shown in 2015-16 will deteriorate again once the recent amendments to the Merit Regulations are put into effect. It should indeed be noted that despite the more favourable climate, at least in family law cases and immigration cases, fewer ECF applications were made in 2015-16 than in the first year of the scheme.
Under the original scheme the prospects of success had to be ranked in one of six categories:
Very good: 80% or more chance of a successful outcome;
Good: 60-80% chance;
Moderate: 50-60% chance;
Borderline: not “unclear”, but not possible by reason of disputed law, fact or expert advice to decide whether the chance of success was 50% (or more) or to classify the prospects as poor;
Poor: unlikely to obtain a successful outcome;
Unclear: cannot be categorised because in all the circumstances of the case there are identifiable investigations which could be carried out after which it should be possible to make a reliable estimate of the prospects of success.
The 2015 amendment regulations, which were in force between 27 July 2015 and 22 July 2016, affected all civil legal aid cases assessed as having “borderline” or “poor” prospects of success, including, but not limited to, ECF cases. They introduced a new category of case as “very poor” (meaning a less than 20% chance of obtaining a successful outcome), and redefined “poor” as meaning a 20%-50% chance of a successful outcome. Legal aid might now be provided for some borderline or poor cases (if this was needed to prevent a breach of an ECHR or EU right). Cases categorised as very poor would be refused legal aid.
The 2016 amendments abolished the “very poor” category and redefined “poor” as covering those cases where there was a less than 45% chance of obtaining a successful outcome. A new category called “marginal” was now introduced (meaning a 45-50% chance of a successful outcome), and the “borderline” category was redefined to cover cases which could not be classified as marginal or poor because of the prevailing uncertainties.
Where prospects were classified as marginal or borderline the test would still be met in some circumstances where the case was of significant public interest; or one with overwhelming importance to the individual; or, in certain proceedings, where its substance related to a breach of Convention rights.
Conclusion: The need for a thorough study
This patchwork, stop-go-stop history suggests that except among some family law and immigration practitioners there is either widespread ignorance of the potential of the ECF scheme to help vulnerable clients in “out of scope” fields of law, or widespread scepticism, born from the disastrous experience for the first 15 months of the scheme, that it is worth the effort of spending more than half a day of professional time in preparing an ECF application which is unlikely to succeed – and as a consequence will leave the provider without any remuneration at all for trying to help his/her client.
I believe that the time has come for one or more NGOs to undertake a project with the following aims:
- To consider each of the areas of law named in the Annex to the Lord Chancellor’s current Guidance with a view to explaining:
Which topics are “out of scope” and therefore potential candidates for ECF assistance;
Which types of dispute may qualify for ECF assistance (whether they are concerned with a “determination of civil rights” or otherwise) whether under ECHR or EU law;
Whether there are any obvious obstacles to the viability of an ECF grant, such as the availability of a Conditional Fee Agreement, or cost-benefit or other considerations mentioned in the Merits Regulations;
What steps could be taken to make this information, and the new climate for ECF applications, better known both among specialist and generalist advisers.
- To conduct a critical examination of the Lord Chancellor’s current Guidance and to advise what, if anything, should be done to ensure that the Guidance reflects relevant considerations of ECHR and EU law with greater clarity and accuracy.
Such a project would require the participation of specialists in ECHR and EU law, and also in the different fields of practice that will be under consideration, as well as those who have had experience for making successful ECF applications, particularly since January 2015. A thorough consultative process would be needed, and it would be good if the LAA could be persuaded to co-operate with the inquiry, because it is in everyone’s interest that vulnerable people should receive the help in “out of scope” fields of practice that Parliament intended.
 The performance of the scheme in Inquest cases, in which the effect of ECHR Article 2 is of central importance, requires separate consideration.
 The Legal Aid, Sentencing and Punishment of Offenders Act 2012.
 The figures given for “applications” include both initial applications and applications for a review of an initial decision. In the first year reviews were requested in 25% of the cases.
 The Public Law Project assisted 25% of all applicants who were granted ECF between 1st April 2013 and 31st March 2015. Of the 31 grants of ECF which were obtained with PLP’s help during this period, funding was not granted in 23 of these cases until a letter before action was written or judicial review proceedings issued against the LAA.
 R (Gudanaviciene) v Director of Legal Aid Casework  EWHC 1840 (Admin).
 R (Gudanaviciene) v Director of Legal Aid Casework  EWCA Civ 1622. The Court of Appeal, incidentally, held that Mr Justice Collins was wrong to hold that refugee family reunion cases were already “in scope”.
 IS v Director of Legal Aid Casework  EWCA Civ 464.
 IS v Director of Legal Aid Casework  EWHC 965 (Admin).
 The Civil Legal Aid (Merits Criteria) Regulations 2013, as amended by SI 131/2014.
 The Civil Legal Aid (Merits Criteria) (Amendment No 2) Regulations 2015.
 The Civil Legal Aid (Merits Criteria) (Amendment) Regulations 2016.
 Formally, it is the Director of Legal Aid Casework who makes the determinations. In practice, the LAA tells us that their Principal Legal Adviser and their Director of High Cost Cases must approve all grants of ECF.
 The merits test is not required when, for example, the ECF application is for Legal Help for investigation purposes.
 For ease of presentation I am omitting reference to section 10(3) (b) which refers to breaches of any rights of the applicant to the provision of legal services that are enforceable EU rights. In G the Court of Appeal doubted (at para 58) whether there was any material difference between Article 47(3) of the European Charter of Rights and Article 6 of the ECHR for present purposes.
 If the application succeeds, the cost of preparing the application is reimbursed by the LAA in accordance with a scale fee.
 These tables contain a rather more detailed breakdown of the “other” cases that were included in the short tables at the beginning of this paper.
 During the passage of the LASPO Bill through Parliament, the Ministry of Justice estimated that 5,000 to 7,000 ECF applications would be made each year of which between 53% and 74% would be granted.
 The evidence of witnesses to the House of Commons Justice Committee, part of which is summarised in paragraph 42 of the Committee’s report (HC 311, 12th March 2015), bore eloquent testimony to the disillusionment engendered during the first 18 months of the ECF’s scheme’s operation. Parliamentary privilege prevented the courts in IS from considering this evidence. Very similar evidence was set out in a research paper published by The Children’s Society in 2015: see H. Connolly, Cut off from Justice (2015) at p 59.
 e.g. judicial review.
 Different rules governed different types of case. For instance, in relation to cases already “in scope”, a housing possession case would automatically meet the “prospects of success” test if its prospects were categorised as marginal or borderline. Special Children Act cases and certain cases arising from EU or international agreements do not require a “prospects of success” test, so that they are completely unaffected by these changes.