With funding granted in only 4% of the 1,789 applications, and in only 12 family cases, the government cannot simply insist that the scheme is working.
Since the cuts to civil legal aid were introduced in April 2013, there have been 1,789 applications for exceptional funding – the pot of money billed by the government as a safety net for those cases falling outside legal aid eligibility.
Under clause 10 of the legal Aid Sentencing and Punishment of Offenders Act 2012, which brought in the cuts, funding can be made available in cases where its denial would risk a breach of the applicant’s right to a fair trial.
Of those 1,789 applications, 78 (4%) have been granted, the majority for inquests.
For family cases, only 12 out of the 946 applications have been granted.
Lawyers have repeatedly warned that families are being denied adequate advice to help resolve family issues and children are being deprived of contact with their parents, in cases where their parents cannot afford legal advice.
Despite the figures, which even the government admits are unexpectedly low, the justice minister Lord Faulks told peers earlier this year: ‘The government consider that the exceptional funding scheme is working effectively.’
And he added: ‘It is not about whether a case may be deserving; it has to fall specifically within the confines of the section.’
It is difficult to see how the system is working effectively when even the High Court has ruled that the test is set too high.
Giving evidence to the Common’s justice committee today, Dave Emmerson, co-chair of Resolution’s legal aid committee, said the government expected to receive and grant thousands of applications, and had put in a place a team of 20 at the Legal Aid Agency to process them.
Emmerson gave an example of a case that he was sitting in as judge. The mother, who was disabled and had learning difficulties, was applying for the three times a year contact with her children, who were in care, to be increased. The special guardian was resisting her application and applying for contact to be reduced.
The mother’s application for exceptional funding was refused, but Emmerson said it was clear that she could not deal with her own case or understand the nuances of the case against her.
It is, he said, appalling that a woman faced with the prospect of not seeing her children is not given the legal advice and assistance that she needs to have her case dealt with fairly.
The figures and the lawyers demonstrate the nakedness of the government’s assertions that the system is working. It is not working. The government and the Legal Aid Agency (LAA) need to wake up and see the emperor is naked. As one lawyer said, otherwise they are in LAA LAA land.