When cuts to legal aid came into effect in 2013, the government insisted that basic human rights would be protected by the Exceptional Case Funding (ECF) scheme. ECF was intended to provide a ‘safety-net’ to ensure that legal aid remained available for cases where individual rights would otherwise be breached. Six years on, the scheme remains under-used. Having only just reached half of the number of applications initially anticipated, the current model does not reflect an up-to-date understanding of why legal aid providers are reluctant to make use of the scheme.
Whilst overall applications to the scheme doubled from 1,516 in 2013/14 to 3,015 in 2018/19, this increase has to be understood against the fact that initial usage of the scheme was pitifully low and that the bulk of applications made in the first year of the scheme were for inquests, for which ECF was available prior to LASPO.
As the cuts made by LASPO were significant, and legal aid firms have repeatedly emphasised the difficulties of maintaining a sustainable business on the current contracts, why has ECF not been used in more cases?
One significant issue since the introduction of LASPO has been the poor grant rates for applications, particularly in certain areas of law. When ECF was introduced, the grant rates were extremely low across the board, with only 70 grants in the first year of the scheme, 54 of which were for inquests. The next year saw a dip in the number of applications, which it can be assumed was due to low confidence in the scheme. The time that legal aid providers spend on ECF applications is only reimbursed by the Legal Aid Agency when an application is successful, which means that there is little incentive for practitioners to make applications if they are likely to be rejected.
Litigation led to some improvements in the operation of the scheme and since the case of Gudanaviciene, which considered the barriers to ECF for applications in immigration cases, the number of successful immigration applications has increased significantly, with a corresponding increase in applications from providers over the past few years. Other areas of law, including housing, family, welfare benefits and debt have seen little improvement. Last year there were no grants of ECF for discrimination or education cases.
Following the challenge to the ECF scheme in the case of IS, which was successful in the High Court but unsuccessful in the Court of Appeal, the Legal Aid Agency made some practical improvements to the scheme. The Court of Appeal judgment found that whilst the scheme was not unlawful, it had some limitations. As a result, the ECF forms were simplified and changes were made to the merits test which is applied. However, these changes did not go far enough to ensure the accessibility of the scheme, and as a result of the PIR, the Legal Aid Agency has committed to making further improvements to the scheme by the end of 2019.
With often low chances of success, providers cannot rely on the ECF scheme to provide legal aid funding for their clients who fall outside the scope of legal aid. ECF applications count towards the Key Performance Indicators on a legal aid contract, so it is not sustainable for firms to make repeat applications if they are likely to be rejected. Information available from the Legal Aid Agency does not clearly set out the types of cases that may be eligible for ECF, and examples have not been provided despite repeated requests.
Family law is an area of particular concern, as the number of applications each year remains low and the average annual grant rate remains under 40%. The PIR highlighted that cuts made to the funding of family legal aid exceeded the predictions in the Impact Assessment which was carried out prior to the introduction of LASPO by £30 million. Immigration is the only area with a relatively high grant rate, with 1,510 cases granted in 2018/19, but this is also indicative of the urgent need for legal advice and representation in immigration cases. Applying for ECF may still act as an unnecessary barrier for many people who require immigration advice to avoid a breach of their rights.
The Legal Aid Agency allows individuals to make applications directly to the ECF scheme, but it is difficult for people to apply without knowledge of the ECF scheme as well as the legal basis of their case. There were just 568 applications by individuals in 2018/19. In the absence of providers that are able to assist, individuals are often reliant on pro bono schemes and charities to make ECF applications. Even once granted ECF, individuals need to secure a provider to take on their case, which can prove to be extremely difficult where there are no providers or capacity is limited.
The ECF scheme requires urgent reform to ensure that it fulfils the promise of providing a rights safety net. Any changes that the Ministry of Justice makes by the end of the year must be informed by insight from legal aid practitioners as to the challenges that the scheme currently poses and why the number of applications remains so low.
To help inform the next phase of policy development, the Public Law Project is undertaking a survey of legal aid professionals that will help to build a detailed analysis of how the ECF scheme is operating. The survey is open until 1 November 2019.
Emma Marshall, Public Law Project researcher