Figures published by the Ministry of Justice last week show that the Covid-19 pandemic is having a significant impact on the number of legal aid applications for exceptional case funding (ECF). The ECF scheme is intended to offer a ‘safety net’ to ensure that legal aid is available where an individual’s human rights would otherwise be breached. In April to June 2020, the number of applications made to the scheme dropped by nearly a quarter (23%) compared to the same period of the previous year. If compared to the number of applications for ECF in January to March 2020, the number of applications for April to June dropped by nearly a third (30%).
Research published today by Public Law Project (PLP) gives some indications as to why there has been a decrease in applications by legal aid providers. PLP surveyed providers in June 2020 and 60% of respondents said that the pandemic had directly impacted their capacity or ability to make ECF applications. 80% said that they were unaware of the steps that the Legal Aid Agency had taken to ensure the accessibility of the ECF scheme in the pandemic, and nearly three quarters (73%) thought more should be done to improve the accessibility of the scheme. The responses indicate that existing difficulties with the ECF scheme have been exacerbated by the pandemic at a time when legal aid providers have less capacity.
Legal aid providers report that they have had less capacity to make ECF applications because the pandemic has meant higher workloads, difficulties collecting the relevant evidence from clients, and restricted access to the necessary resources such as printing facilities. Staff shortages through furlough was likely also a factor. Although data for the legal sector alone is not available, statistics published by HM Revenue and Customs show that by the end of June 2020 a total of 9.4 million jobs had been placed on furlough. For example, the take-up rate for the Job Retention Scheme by employers in the professional, scientific and technical sector was 47%. These figures give an indication as to the pressure on legal aid providers and the impact of the pandemic on the workforce capacity of the sector.
Of those surveyed, most legal aid providers who reported that the pandemic did not have an impact on whether they were able to make ECF applications said that it was because they had not been making applications prior to the pandemic either. Although in recent years the number of ECF applications has increased overall, the total of 3,747 ECF applications for the financial year 2019/20 still falls short of the 5,000 to 7,000 anticipated when the scheme was introduced under the Legal Aid, Sentencing and Punishment of Offenders Act 2012 (LASPO). The total number of applications for 2019/20 also includes 442 applications for inquests, an area of law for which ECF was available prior to the introduction of LASPO.
The research by PLP highlights a number of improvements necessary to ensure the accessibility of the ECF scheme throughout the pandemic, including improved processes for quicker decision-making, an area also identified by the government’s own review of LASPO, which was published in 2019.
Public Law Project wrote to the Lord Chancellor on 16 April 2020, to request changes to the ECF scheme during the pandemic. A response was received on 10 May 2020 from Alex Chalk MP, the Minister responsible for legal aid, setting out the measures already introduced by the Ministry of Justice. These include regular meetings with stakeholders, relaxing evidence requirements, and issuing updated ECF guidance and forms for challenges to restrictions under the Coronavirus Act.
The survey results demonstrate very low awareness of these changes, indicating that the Legal Aid Agency must provide clear information directly to legal aid providers about any changes affecting the ECF application process.
Finally, despite the changes that have been introduced, legal aid providers remain concerned about ongoing problems in the operation of the ECF scheme. Further measures must be implemented to ensure that the ECF scheme is widely accessible, particularly as the restrictions introduced by the government in response to the pandemic are likely to last for at least the next six months. Although the number of ECF applications is relatively low, the scheme is essential for ensuring access to justice for those whose rights would otherwise be breached.
Note on the research: the survey opened on 15 June 2020 and remained open until 3 July 2020. The survey was sent to the 80 legal aid providers that participated in Public Law Project’s previous research. Public Law Project received 15 responses to the updated survey, across a range of jurisdictions, including immigration, housing, family, welfare benefits, public law and debt.
Emma Marshall is a research fellow at Public Law Project