An image of Chris Grayling held by protesters outside Westminster campaigning against legal aid cuts in 2014. Grayling was also the Lord Chancellor against whom cases were brought around the Exceptional Case Funding scheme. Photo: Press Association/Sean Dempsey. All rights reserved.
When the Legal Aid, Sentencing and Punishment of Offenders Act 2012 (‘LASPO’) came into force in April 2013, it made sweeping cuts to the availability of civil legal aid in England and Wales. LASPO removed legal aid for whole areas of social welfare law including most immigration, welfare benefits, debt and housing cases, and most private law family disputes such as divorce and child custody proceedings. Limited exceptions were made, for example for victims of domestic violence or children at risk of abuse, or for cases where people’s home is at risk.
LASPO also contains a provision which is supposed to provide a “safety net” for cases where the denial of legal aid would lead to a breach of a person’s human rights, under the European Convention on Human Rights (‘ECHR’) or under EU law. This is the “Exceptional Case Funding” (‘ECF’) system under section 10 of LASPO.
Just over 1% of applications for ECF were granted in the first year.
During the passage of LASPO through Parliament, Jonathan Djanogly MP, one of the ministers proposing the bill, said that:
“The exceptional funding scheme will ensure that legal aid will be available where required—those cases in which people genuinely could not manage by themselves, and in which a failure to provide legal aid would be likely to breach an individual’s right to legal aid under the Human Rights Act 1998 or EU law.” Commons Committee, 8th sitting, 6 September 2011, Column 349.
The main Convention rights in play are: the right to a fair hearing in the determination of civil rights and obligations (Article 6, ECHR); and the right to effective protection of a person’s right to respect for family and private life (Article 8, ECHR).
ECF operates separately from normal, or ‘in scope’, legal aid. Legal aid providers can’t grant ECF. Instead clients have to make a separate application to the Legal Aid Agency (‘LAA’), setting out why, in their view, the denial of legal aid would breach their Convention or EU law rights. The application is “at risk” – there is no funding for the time spent by a provider helping the client to apply unless the application is successful. The target time frame for responding to urgent applications is five working days, which is simply not quick enough for many very urgent cases (for normal legal aid, the standard timeframe for an emergency legal aid application is 48 hours, and a decision can be made more quickly in very urgent cases).
The Lord Chancellor has published guidance about ECF which LAA decision makers are required to follow when considering ECF applications. The first version of this guidance set the bar very high. It advised decision makers that ECF would only be required to comply with Article 6 ECHR in “very limited circumstances” (para 9) and that “the threshold for such a breach is very high” (para 10). It described “the overarching question” as “whether the withholding of legal aid would make the assertion of the claim practically impossible or lead to an obvious unfairness in proceedings” and, in case it wasn't already obvious, it added that “this is a very high threshold” (para 18).
In respect of Article 8, the guidance said that “it would normally only be [granted] in circumstances closely analogous to” two decided cases, both of which concerned a need for legal representation in complex family proceedings, that legal aid would be required to ensure compliance with Article 8 (para 27).
In relation to immigration cases, the guidance pointed out that, according to the case law of the European Court of Human Rights, decisions relating to the entry, stay and deportation of immigrants and proceedings relating to immigration status do not generally involve the determination of civil rights and obligations (para 59). It then set out the Lord Chancellor’s view that:
“The Lord Chancellor does not consider that there is anything in the 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 article 8 ECHR”
As a result of this guidance, as well as practical difficulties with making ECF applications, it was indeed practically impossible to get ECF at the beginning of the scheme. Just over 1% of applications for ECF were granted in the first year. Only a small number of applications for ECF were made, a fraction of the numbers which the Ministry of Justice had predicted while LASPO was under consideration by Parliament.
“the critical question is whether an unrepresented litigant is able to present his case effectively and without obvious unfairness”.
In the judicial review case of Gudanaviciene, brought against the Lord Chancellor in 2014, the Court of Appeal found that this guidance was unlawful. 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 and nor was there a “very high threshold”. Rather “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 effectively participate in a decision making process which affects his family and private life rights. Following this judgment, the Lord Chancellor amended the guidance to reflect the Court of Appeal’s findings about the circumstances in which ECF should be granted.
One of the six claimants whose cases were heard together in the Gudanaviciene case, Mr IS, acting by the Official Solicitor, also brought a broader challenge to the lawfulness of the ECF scheme, arguing that the scheme as a whole was so unfair and inaccessible as to be unlawful. That challenge succeeded in the High Court but the Lord Chancellor successfully appealed to the Court of Appeal. The Court of Appeal 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 LAA and the Lord Chancellor will be astute to look for improvements, and will do so on a continuing basis” (para 57).
This litigation has however led to a number of changes which have improved the accessibility of ECF. The form has been simplified. The urgency procedure has been improved (although, as noted above, it remains inadequate). 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. Individual applicants can now receive a grant of ECF which they can take to a provider, rather than merely a positive indication.
Because legal aid providers are still not paid for making unsuccessful applications, for many it is economically unviable for them to do so.
The number of ECF applications has increased. The latest LAA statistics show that from July to September 2016, there were 341 new applications for ECF, which remains a low figure compared to the MOJ’s estimated level of need, but is the highest number of new applications in any quarter since the start of the ECF scheme. The success rate for new applications decided in that quarter was 49% and 22% of review requests were successful. In immigration cases, the success rate was as high as 71%.
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.
PLP’s ECF project is coming to an end and we are no longer able to assist with making individual applications. However, we are able to offer training and support to other organisations wanting to support their service users in applying for ECF.