Posted on 6th August 2015
In the latest ruling in the ongoing battle to secure access to justice in the face of cuts to legal aid, both the Exceptional Case Funding (‘ECF’) scheme and the merits test come in for heavy criticism from judge, Justice Collins.
IS v The Director of Legal Aid Casework & Anor  concerns the successful judicial review challenge of six linked claims, where extremely vulnerable applicants had been wrongfully refused ECF, a form of legal aid. One of the applicants refused funding in his immigration case is a Nigerian national who has lived in this country for over 13 years, who is blind with profound cognitive impairments and is therefore unable to care for himself or conduct litigation. It is hard to imagine a more vulnerable applicant with more need of legal representation.
The Legal Aid, Sentencing and Punishment of Offenders Act 2012 (‘LASPO’) took many important areas of law out of scope for legal aid, including most immigration, welfare, employment, clinical negligence and non-care or domestic violence related family cases. In doing so, the government blocked access to justice for the most vulnerable in our society, stating that these dramatic cuts were unavoidable consequences of the public debt crisis. As Justice Mostyn recently observed “…the principle of individual justice has had to be sacrificed on the altar of public debt”
In an attempt to provide a small “safety net” to a very limited number of the most vulnerable individuals, in section 10(3) of LASPO the government established the much criticised ECF scheme. Individuals can apply for legal aid through the ECF scheme if their human rights or EU rights are at risk of being breached.
Obtaining legal aid through the ECF scheme is far from easy, due to the many obstacles and restrictions put in place by the government. Until Justice Collins’ June 2014 judgment in Gudanaviciene which relaxed the crucial test determining whether ECF should be granted to “whether an unrepresented litigant is able to present his case effectively and without obvious unfairness”, the success rate in grants of non-inquest ECF amounted to a little over 1%. Since Gudanaviciene, success rates have increased to about 13%, which remains a worryingly low figure. Few applications for ECF are being made due to the low chance of success. Prior to implementing the scheme, the government anticipated that some 5,000 to 7,000 applications would be made in a year, however the actual rate has been a fraction of that.
Exceptional Case Funding
In this landmark ruling handed down on 15 July 2015, in IS Justice Collins launched a comprehensive attack on the ECF scheme, stating:
“…[the ECF application forms are] insufficiently accessible…even for lawyers, the prescribed forms are far too complex and the information required is excessive. For those without any legal assistance, they are almost impossible to understand and to fill out satisfactorily.”
One litigant in person suffering from a mental health condition quoted in the judgment describes her experience of completing the lengthy and complicated forms “as a total nightmare”. The Legal Aid Agency made no concessions for the fact she was unrepresented and refused her application for ECF, meaning she had to represent herself at Court in care proceedings concerning her daughter and unborn son. In his judgment, Justice Collins recommends that separate ECF application forms should be provided for applicants in person and states:
“…[the ECF scheme] is 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.”
Should a solicitor be making an application for ECF in an area of law not usually covered by legal aid, they will not be paid for the work done to investigate a client’s problem to determine their prospects of success and whether an ECF application should be made. Due to the high refusal rates of ECF applications, the judgment explains:
“…there is little chance that an individual will be able to find a provider who is prepared to do the necessary work to make an ECF application.”
Justice Collins states consideration should be given to making Legal Help (the first stage of legal aid, which can be used to provide advice and assistance to clients prior to issuing legal proceedings at Court) available for solicitors to make these initial enquiries and decide whether an application is justified.
Solicitors are not paid for completing the highly detailed and complex ECF application forms, which often involve many hours of work and can run to several lever arch files, leaving obtaining justice “to the goodwill, the charity, of the legal profession.” Justice Collins states the high level of detail demanded by the Legal Aid Agency in the ECF application forms is “not reasonable” and that the forms should be simplified to reduce the unpaid burden on solicitors.
In summary, Justice Collins rules:
“I am satisfied that the [ECF] scheme as operated is not providing the safety net promised by Ministers and is not in accordance with s10 [LASPO] in that it does not ensure that applicants’ human rights are not breached or are not likely to be breached.”
The Merits Test
Justice Collins’ criticism of legal aid is however not limited to the ECF scheme. Importantly, the judgment also rules that the merits test used by the Legal Aid Agency to determine whether an applicant qualifies for legal aid is unlawful. Prior to this judgment, the Civil Legal Aid (Merits Criteria) Regulations 2013 (‘the Merits Criteria Regulations’) stated that a case had to have at least a moderate (i.e. 50% or above) chance of success to be eligible for legal aid. Justice Collins states this test is “unreasonable”, “flawed” and the manner in which the Legal Aid Agency assess the prospects of success “erroneous” and “impermissible”. In relation to the merits test, Justice Collins states it is not for a caseworker at the Legal Aid Agency “to second guess the Judge’s view” in refusing ECF in borderline or poor cases and also that:
“…it is not for the Legal Aid Agency to carry out the exercise which the Court will carry out, in effect prejudging the very issue which will be determined by the Court.”
As a result of this judgment, significant emergency amendments to the Merits Criteria Regulations were rushed through by the government, in the form of the Civil Legal Aid (Merits Criteria) (Amendment) (No 2) Regulations 2015 (‘the Amendment Regulations’), which came into force on 27 July 2015. Since the Amendment Regulations, legal aid should now be granted if the prospects of success in a case are borderline or poor (i.e. 20% or above) if there is a risk of the applicant’s human rights or EU rights being breached. A new category of ‘very poor’ has also been introduced, where prospects of success are less than 20% and when legal aid should not be awarded.
In their Explanatory Memorandum issued following the judgment, the government state that the changes imposed on the legal aid system by Justice Collins could result in further costs of up to £15 million per year. The government has been granted permission to appeal the decision in IS. In considering their appeal and whether the safety net should again be removed from these extremely vulnerable litigants in the name of public funding cuts, we must surely ask – what price is justice?