The government has amended its safety net scheme for people denied legal aid because of cuts – despite its decision to appeal a High Court decision that branded the scheme ‘unlawful’.

Earlier this month Mr Justice Collins said the application procedure for exceptional funding was ‘far too complex’ for litigants in person, while the rigidity of the merits test was ‘wholly unsatisfactory’ in IS v director of legal aid casework and the lord chancellor.

An exceptional case-funding application for legal services is made where a case falls outside the scope of legal aid but the client or conducting solicitor believes there is a requirement to provide funding because failure to do so would breach the Human Rights Act.

To receive legal aid funding for full representation, applications must have at least a 50% chance of success. Civil legal aid for full representation is not available where a case has a borderline or poor prospect of success.

However, amendments to the Civil Legal Aid (Merits Criteria) Regulations 2013, which came into force today, mean legal aid may be provided for some cases that are assessed as having boderline or poor prospects of success.

In an explanatory memorandum for the joint committee on statutory instruments, the Ministry of Justice said the director of legal aid casework would need to be satisfied ’that it is necessary to determine (or in the case of a risk of a breach, appropriate to determine) that the prospects of [a] success test is met to prevent a breach (or the risk of a breach) of the legal aid applicant’s rights under the European Convention on Human Rights or enforceable EU rights’.

The amendments apply to decisions made from today. The MoJ said the risk of the Legal Aid Agency acting unlawfully in the period between the High Court judgment and the new regulations ‘is very low’.

Additional cases where the prospects of success are borderline or poor could result in an estimated £15m a year in additional costs to the legal aid fund. The ministry said this did not take into account increased administration costs for the LAA and increased costs orders against the agency where cases are unsuccessful.

The ministry said it will 'consider the extent to which these amendments to the merits criteria regulations remain appropriate following the outcome of the appeal’.

No date has been given for the appeal.