Scheme for Exceptional Case Funding not providing the required safety net

19 July 2015 by Rosalind English

IS (by the Official Solicitor as Litigation Friend)  v The Director of Legal Aid Casework and Anor [2015] EWHC 1965 (Admin) (15 July 2015) – read judgment

Collins J has ruled that the Legal Aid guidance as to whether to provide exceptional funding in certain cases is so rigid and complicated as to be unlawful.  

Although no declaration has been made in terms, he said that the scheme as operated was “not providing the safety net promised by Ministers and is not in accordance with [the relevant statute] in that it does not ensure that applicants’ human rights are not breached or are not likely to be breached.”

The actual case before him concerned a defendant who had in fact been granted legal aid consequent to an earlier decision by the Appeal Court. There were five other claims which raised similar issues in relation to the guidance and in which the individual claimants asserted that there had been a wrongful refusal of Exceptional Case Funding under Section 10(3) of the Legal Aid Sentencing and Punishment of Offenders Act 2012 (LASPO). It was ordered that the six claims should be heard together to deal with the individual circumstances of each claimant and the attack on the guidance. The claims came before the same judge, Collins J, and on 13 June 2014 he granted judicial review in each of the six cases. His decision was appealed to the Court of Appeal by the defendants, but in this case the appeal was discontinued. The cases were reported under the title of R (Gudanaviciene) v. DLAC and Lord Chancellor (read my previous post on the Court of Appeal’s decision).

The main issue before Collins J was whether the refusal of funding to the claimant breached his Convention rights under Article 6 (access to justice), Article 8 (right to respect for family life) and 14 (enjoyment of Convention rights without discrimination) in that without legal aid the claimant was unable to make an effective application to have his position in this country recognised.

The fact that the claimant, a Nigerian national, was blind, had a profound cognitive impairment and was therefore unable to engage in litigation meant that there would be something “seriously wrong” with a system applied under LASPO when an “extremely vulnerable individual who could not afford to pay for assistance and who could not achieve an effective exercise of his Article 8 rights was deprived of such assistance.

LASPO does provide that “an exceptional case determination” for provision of legal aid must be made if otherwise there would be a breach of an individual’s human rights under the ECHR or enforceable EU rights (section 10(3)(a)).

Until Collins J’s decision in June 2014, the success rate in grants of non-inquest Exceptional Case Funding amounted to a little over 1%.

That on any view is a very worrying figure. It has since increased……. Suffice to say that I am satisfied from the claimant’s evidence, albeit the defendants have said that the success rate has risen above 15%, it is more likely to be, when proper account is taken of the limitation to non-inquest cases, about 13%. That remains a very low figure.”

Collins J referred in this regard to the decision in Re:D (A Child) [2014] EWFC 39, where an unrepresented father who lacked capacity had applied to revoke a care order and the local authority was seeking to place his child for adoption. Sir James Munby, P eventually after what Mostyn, J describes as ‘heavy pressure’ persuaded the Legal Aid Authority (LAA) to award some legal aid.

Sir James observed (paragraph 31 (vi) of his judgment):-

Thus far the State has simply washed its hands of the problem, leaving the solution to the problem which the State has itself created – for the State has brought the proceedings but declined all responsibility for ensuring that the parents are able to participate effectively in the proceedings it has brought – to the goodwill, the charity, of the legal profession. This is, it might be thought, both unprincipled and unconscionable. Why should the State leave it to private individuals to ensure that the State is not in breach of the States’ – the United Kingdom’s obligations under the Convention?

As Collins J observed, it

is difficult to imagine a family case, particularly when there are contested issues about children, in which [the lack of funding] would not be an interference with the Article 8 rights of either parent or the children themselves.

The legal aid exceptional case scheme was not, in his view, working as it should. Indeed in family cases the scheme

is clearly wholly deficient in that it does not enable family courts to be satisfied that they can do justice and give a fair hearing to an unrepresented party. While the problem may perhaps be less acute in other civil cases, I have no doubt the difficulties I have referred to in family cases apply.

Article 6 does not apply in immigration cases, since decisions relating to the entry, stay and deportation of immigrants do not involve the determination of civil rights covered by that article (Grand Chamber of the ECtHR in  Maaouia v France (2001) 33 EHRR 42) but Article 8 at least almost certainly will, as it will in virtually all family cases.

I am far from persuaded that LASPO should be construed, despite what Ministers said it was intended to achieve, to limit grants of legal aid to the highest priority cases. What Parliament has provided is that it must be granted if without it an individual will suffer a breach of his Convention or, where material, EU law rights and may be granted if there is a risk of such breach.

Although the guidance does not explicitly deal with Article 8, it was clear that the procedural requirements in that Article are essentially the same as those in Article 6(1). Effective access required to protect Article 8 rights is needed and that means legal aid is required to ensure that there is such access and it is fair.

The belief that because courts and tribunals have to deal with litigants in person legal representation can be refused is one which must be very carefully applied. It should only be used to refuse an application if the issues are truly relatively straightforward.

And a litigation friend is no substitute for a person lacking capacity; there is a “powerful disincentive” for a litigation friend to act on behalf of that person in the absence of legal aid since he or she undertakes not only to pay the protected persons costs but any costs that the court may order to be paid by the protected person.

Collins J was unwilling to refer to individual mistakes made by the LAA: mistakes do not of themselves show that the system is defective. But he was “entirely satisfied” that  the scheme was not, as it is operated, meeting its need to ensure that an unrepresented litigant can present his or her case effectively and without obvious unfairness. That extended to the need to ensure that he or she had access to assistance which may be needed, as in IS’s case, to make representations to the relevant authority to achieve a particular purpose. The same need existed as for hearings before a court or tribunal.

Part of the problem lay in the complicated way in which the forms are prescribed, meaning that the scheme is not properly providing the safety net which Section 10 is supposed to provide. There is also no right to appeal a decision not to provide exceptional funding, and the right to seek judicial review was, in the judge’s opinion, not an entirely satisfactory remedy since it is only possible to quash a refusal if an error of law is established. Essentially, in most cases it would be necessary to show that the decision was irrational in Wednesbury terms.

Finally, the circular nature of representation or lack of it meant that the test of whether a case was winnable or not had been erroneously applied, in two ways:

First, the requirement that in all cases there must be a even or greater than even chance of success is unreasonable. Secondly, the manner in which the LAA has assessed the prospects of success has been erroneous. The whole point of representation is that it will produce the chance of success which without representation will not exist.

What the decision maker should focus on is not what the present material when untested may indicate but whether if competent cross-examination or legal submissions are made the result may be favourable. It was not for the LAA to carry out the exercise which the court would carry out, in effect prejudging the very issue which will be determined by the court.

The court is to hear argument as to what relief should be granted, in the light of this judgment.

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