This is the eleventh in the new series of blogs which will start with relevant extracts from the Bach Commission’s Final Report. These will be followed by the more detailed treatment I gave to the topic in one of the chapters in Appendix 5 to the Report.
I wrote the papers in this Appendix because I was keen not to lose the opportunity to provide in-depth treatment of important issues for which there would clearly be no room in the report itself.
This paper on Exceptional Case Funding will be concerned with all aspects of the topic other than funding for Inquests, which will be covered separately.
At last week’s Conservative Party Conference the Solicitor-General, Robert Buckland MP, told delegates at a fringe meeting organised by LawWorks that the government’s review of the Legal Aid Sentencing and Punishment of Act 2012, delayed by the snap election, was underway. He also told Catherine Baksi, a freelance legal journalist who writes for Legal Voice, that he hoped it would ‘yield fruit’.
He said a key focus would be on exceptional case funding. Accepting that there had been a much lower than anticipated spend on these cases, he said:
‘There is a strong view that since the implementation of LASPO there has been an overly restrictive approach taken to those applications by the Legal Aid Agency (LAA). My personal view is that the criteria applied by the LAA has been too restrictively applied and I think that is wrong. There is unfairness that needs to be addressed.’
Any fair-minded person who reads the contents of this blog would be bound to agree.
1 EXTRACT FROM THE REPORT
Exceptional case funding
The commission has heard extensive evidence about the failings of the exceptional case funding (ECF) scheme. It has proven practically impossible for litigants to take advantage of this supposed ‘safety net’ for cases where a denial of legal aid would result in a breach of a person’s rights under either the European Convention on Human Rights (ECHR) or EU law. Shockingly, in its first year of operation, only 1 per cent of non-inquest applications for ECF were granted. Indeed, the number of ECF applications themselves were worryingly low, only a fraction of those predicted by the MoJ. In 2014 the high court found that the restrictive guidance published by the then lord chancellor on the exceptional case funding scheme was incorrect and unlawful.
We have also heard evidence about applications to the ECF scheme for representation for bereaved families. In assessing an application, the LAA is required to carry out intrusive means-testing of members of the deceased’s family. Yet a 2015 Freedom of Information Act response disclosed that no applications for exceptional case funding to pay for representation at inquests were rejected on the basis of financial eligibility. The commission recommends that this blanket requirement for means-testing members of the deceased’s family for exceptional case funding is removed.
The commission is extremely concerned that what was billed as an essential safeguard for those at risk of human rights violations is failing in its – already limited – purpose. The ECF scheme needs urgent review and reform, but it is also a clear manifestation of a broken system. We hope that the policy recommendations within this report, as well as the new Right to Justice Act, will supersede the need for the scheme by broadening the availability of mainstream legal aid, and by embedding the principle of access to justice firmly at the heart of government decision-making.
2. APPENDIX FIVE TO THE REPORT
CHAPTER 7: Exceptional Case Funding
The common law right to access to the court has never been recognised to encompass a right to legal aid. For the time being the only sources of enforceable rights to legal aid for people in England and Wales are the European Convention on Human Rights (ECHR) and European Union (EU) law. Section 10 of LASPO provides for Exceptional Case Funding (ECF) to be made available in a case (which would otherwise be out of scope) where a failure to do so would breach, or risk breaching, an individual’s Convention or enforceable EU law rights. The ECF scheme was introduced as the “safety net” by which LASPO was supposedly made compliant with the UK’s obligations under the ECHR and EU law.
During the passage of the LASPO Bill through Parliament, the Government placed great emphasis on clause 10 of the Bill and the availability of ECF. In particular, ministers repeatedly assured 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 ECF scheme would provide an adequate safety net. The Government’s pre-LASPO estimates of the percentage of “out of scope” cases likely to be readmitted under the ECF scheme were modest, but they nonetheless implied at least 847 children and 4,888 young adults being granted ECF each year. The Government also identified Section 10 of LASPO to the United Nations CEDAW Committee as being the “safety net” for women unable to obtain legal aid because they could not prove they were victims of violence.
In advance of the implementation of LASPO, the Government’s best estimate of the annual number of ECF applications for non-inquest legal representation was 6,500, with further applications being anticipated for legal help.
The first year
Legal Aid Agency statistics record that they received only 1,315 “applications” for non-inquest ECF in the first year of the scheme, and 947 in the second year. The figure given for “applications” includes both initial applications and applications for a review of an initial decision. In the first year of the scheme approximately 1% of all these applications were granted. Not only were the numbers applying to the scheme a fraction of those said to be anticipated by the LAA, but those who were able to apply had a vanishingly small chance of succeeding. This table, taken from the LAA’s Statistics, shows the outcome for the first year of the scheme:
|Case Category||Year||Applications||Grants||Success Rate %|
One reason for the very low ECF grant-rate was that from the very outset the Government contended for a narrow interpretation of section 10. In short, 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 (“G”) 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 its purposes.
The Public Law Project (PLP) received funding which enabled it to study the way the scheme was working, and to understand the barriers that were preventing people from accessing ECF in its early days. These barriers included:
The complexity of the forms the LAA required to be provided with an application;
The time-consuming nature of the ECF application process and its onerous evidential requirements;
The need in many cases to engage in pre-action correspondence before ECF would be granted;The lack of an emergency procedure;
The lack of funding for providers to make applications, and providers’ consequent unwillingness to make them; and
The LAA’s decision-making when determining applications.
Of particular note were the lengths to which it could be necessary to go for an applicant to obtain a grant of ECF. Of the 31 grants of ECF obtained with PLP’s assistance in the first two years of the scheme, 23 required either a pre-action letter or the issuing of judicial review proceedings before funding was granted.
Southall Black Sisters told the commission last year:
We … remain sceptical of the exceptional funding scheme for those who cannot access legal aid and whose human rights may have been breached. Our experience and that of experienced solicitors with whom we work, shows that obtaining funding through this scheme is a huge, uphill battle. The application process is unwieldy and unnecessarily complex and the number of successful applications remains shockingly low. A further disincentive to such applications is that solicitors are not paid for completing the extensive exceptional funding application forms unless the application is successful. We are of the view that the scheme is not fit for purpose.
The Children’s Society told the Commission that research it sponsored in 2015 highlighted the fact that the process of applying in the first instance was “overly laborious, complex and practically impermeable”. It said that one of the most striking findings of its Cut Off from Justice research was the lack of engagement by solicitors with the ECF scheme:
Not one participant across the participant groups spoke about knowing children that had been assisted through this. When exceptional funding was raised during the interviews, it was highlighted as an elusive opportunity rather than the ‘safety net’ that it was designed to be. It was noted by some participants that lawyers did not see the point in submitting an exceptional funding application given the poor quality decision-making process in conjunction with the long and complex process of putting an application together. It was not considered a good use of time and practitioners considered it more time efficient to secure pro-bono work. One practitioner did highlight to us the complications she saw with an 18-year-old young man going through the process. Indeed, it turned out to be too complicated for him to navigate even with the full support of his lawyer that in the end he abandoned the process altogether.
The second year
The second full year of the scheme revealed a slightly higher success rate, although the number of applications in family cases was greatly reduced:
|Case Category||Year||Applications||Grants||Success Rate %|
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 the two judgments in G.
Following the Court of Appeal judgment new formal 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 Mr Justice Collins held in July 2015 that the Government’s approach to ECF funding was unlawfully restrictive. In May 2016, however, the Court of Appeal reversed that decision by a 2-1 majority. It accepted, however, that:
It is plain that there have been real difficulties; and there is no contest but that improvements could be made, not least to the ECF form… the success rate remains low and the number of applications strikes me as modest (para 54);
Lord Justice Laws also observed that
The extent of the difficulties is however troubling. No doubt the Legal Aid Agency and the Lord Chancellor will be astute to look for improvements, and will do so on a continuing basis (para 57).
Amendments to the original Regulations came into force towards the end of July 2015 in order to meet some of Mr Justice Collins’s criticisms in IS, 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 restored the position as it stood before Mr Justice Collins’s intervention.
The IS litigation led to a number of changes which improved the accessibility of ECF. The application form has been shortened and simplified. The urgency procedure has been improved. It is now possible to apply for “ECF for ECF” so that providers can be paid for time spent investigating or gathering evidence in support of an application for ECF. The new form asks five quite simple additional questions that are directed to the issues identified in the Court of Appeal’s judgment in G. And individual applicants can now receive a grant of ECF which they can take to a provider, rather than merely a positive indication.
The present state of the law
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 it 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 found that the Lord Chancellor’s original guidance was unlawful for two main reasons. First, it set the bar too high. The test was not whether it would be practically impossible for the litigant to proceed without legal aid. Nor was there a “very high threshold”. Instead,
“the critical question is whether an unrepresented litigant is able to present his case effectively and without obvious unfairness” (paragraph 56).
Secondly, as the Lord Chancellor conceded shortly before the hearing in the Court of Appeal, there will be a legal obligation to provide ECF in immigration cases where it is necessary to ensure that an individual is able to participate effectively in a decision-making process which affects his family and private life rights.
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 representation) is stressed in this context.
The different elements of caseworkers’ current guidance have been set out 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 Lord Justice Laws 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.
The third and fourth years
As the following table shows, the changes that were made two years ago led to an enhanced success rate, although the number of applications is still nowhere near the annual figures that were predicted before Section 10 was enacted.
|Case Category||Year||Applications||Grants||Success Rate %|
PLP was formerly in receipt of a funding grant that enabled it to assist applicants with their ECF applications. When the grant came to an end earlier this year, PLP published a news release which stated:
Because legal aid providers are still not paid for making unsuccessful applications, for many it is economically unviable for them to do so. It is difficult for individuals to apply for ECF without assistance, but it is not impossible to do so. Some organisations run pro bono projects to help individuals to apply for ECF but there remains a far greater need than there is available assistance. The Public Law Project, which has run an ECF project assisting with applications for ECF since the start of the scheme, has developed a guide for individuals wanting to have a go at applying for ECF. The guide can be downloaded from PLP’s website here. And there is more useful information about applying for ECF here.
Jawaid Luqmani told the Commission that despite the improved success rate in immigration cases, the number of applications remained very low. He explained that there were a number of inhibitors preventing access to ECF:
A perception that the probability of success is far lower than the probability of failure (incorrect on the present data)
The inability or unwillingness of practitioners to spend time making an application on a speculative basis where the application may take between 2-3 hours to progress.
He said it was likely that the spread of cases where applications for ECF had been made would be limited to a number of organisations, with many more firms not applying than applying – and the number of firms with legal aid contracts had reduced significantly since the advent of LASPO. His own firm had a 100% success rate, but the number of applications it had made were comparatively few.
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 four years of LAA statistics show how little effective use has been made in these other categories of case of the safety net ECF was supposed to provide, and how unsuccessful the applications generally were. See the following table:
|Applications||Grants||Success Rate %|
|Housing/Land Law||2013- 14||80||1||1.3|
 R (Director of Legal Aid Casework and the Lord Chancellor) v IS  EWCA Civ 464. Accessed September 2017: http://www.bailii.org/ew/cases/EWCA/Civ/2016/464.html
 Alison Pickup. (2017) How safe is the legal aid ‘safety net?’. Open Democracy, Accessed September 2017: https://www.opendemocracy.net/openjustice/alison-picku/how-safe-is-legal-aid-safety-net
 R (Gudanaviciene and Others) v Director of Legal Aid Casework and Another  EWHC (Admin) 1840. Upheld,  EWCA Civ 162 (see fn 11 above). Accessed September 2017: https://www.judiciary.gov.uk/wp-content/uploads/2014/12/gudanavicience-ors-v-dir-of-legal-aid.pdf See also, IS (by the Official Solicitor as litigation friend) v DLAC and Lord Chancellor  EWHC 1965 (Admin). Accessed September 2017: http://www.bailii.org/ew/cases/EWHC/Admin/2015/1965.html
 Unless special provision is made in a domestic statute.
 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.” House of Lords Hansard, 16 Jan 2012: Column 447.
 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 the forecast reductions in the volume of cases as a result of the legal aid reforms.
 Ministry of Justice: Legal Aid Reform: Excluded Cases Funding Process Equality Impact Assessment; March 2012 p. 9.
 The guidance suggested that a Convention right to funding arose only under Article 6 ECHR, and that it was only necessary to provide such funding if its absence would make it “practically impossible” for the applicant to bring the case. ECF was not, therefore, available in immigration cases that did not engage enforceable EU law rights, and the test to be applied in cases in which Article 6 ECHR was engaged was very high indeed.
 R (Gudanaviciene) v Director of Legal Aid Casework  EWHC 1840 (Admin). Accessed September 2017:
 R (Gudanaviciene) v Director of Legal Aid Casework  EWCA Civ 1622. Accessed September 2017: http://www.bailii.org/ew/cases/EWCA/Civ/2014/1622.html
The Court of Appeal, incidentally, held that Mr Justice Collins was wrong to hold that refugee family reunion cases were already “in scope”.
 The Children’s Society. Dr Helen Connolly (2015) Cut Off from Justice: the impact of separating migrant children from legal aid’, (2015). See fn 56 above.
 IS v Director of Legal Aid Casework  EWHC 1965 (Admin). Accessed September 2017:
 IS v Director of Legal Aid Casework  EWCA Civ 464. Accessed September 2017. http://www.bailii.org/ew/cases/EWCA/Civ/2016/464.html
 The Civil Legal Aid (Merits Criteria) (Amendment) Regulations 2016. Accessed September 2017:
 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 reference to section 10(3) (b) is omitted. It 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.
 Public Law Project. Alison Pickup (2017) How safe is the legal aid “safety net”. Accessed September 017: https://www.opendemocracy.net/openjustice/alison-picku/how-safe-is-legal-aid-safety-net
 Both accessed September 2017:
 JustRights told the Commission that some legal aid providers specialising in working with children and young people had reported giving up applying for exceptional funding altogether as they considered it a waste of valuable time.
 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.