Legal aid will no longer be made available for cases with poor or borderline prospects of success that may have received funding, the government has said.
The Legal Aid Agency has changed its approach to assessing merits after the Court of Appeal ruled last month that the agency’s exceptional case funding scheme and merits regulations were lawful.
Under the current merits criteria, most cases need to pass a ‘prospects of success test’ before legal aid can be made available.
The prospects of success test is met in cases with ‘poor’ prospects or ‘borderline’ cases where funding is necessary to prevent a breach of a client’s rights under the European Convention on Human Rights, or any rights of a client to the provision of civil legal aid or services that are enforceable under EU law.
Legal aid can also be granted where the director of legal aid casework considers it appropriate to find that the test is met having regard to any risk of a breach.
The agency said yesterday that the Court of Appeal found that it was lawful for the prospects of success test to have a 50% threshold and that this did not breach a client’s rights.
‘As a result, we are now no longer funding any applications for civil legal aid that are subject to a prospects of success test where the prospects are assessed as poor or borderline,’ it added.
A spokesperson for the agency told the Gazette that it will only fund cases which are at or above the 50% threshold in any case where the legal aid regulations require the prospects of success test to be met.
The agency has also reinstated delegated functions to allow providers to refuse legal aid in cases they assess as having poor or borderline prospects.
‘This allows immigration providers to refuse applications for controlled legal representation in these matters without having to revert to us first,’ the agency said.
The Law Society said the change could mean that fewer people are entitled to legal aid. ’We are therefore disappointed that the Ministry of Justice decided to announce this significant change so soon after the referendum, and without consultation,’ a spokesperson for the Society said.
’The court may still be considering this issue following the Court of Appeal judgment in The Director of Legal Aid Casework and Lord Chancellor v IS and, as such, if the Supreme Court changes the rules, decisions on eligibility for legal aid could turn out to be unlawful.’
Although the Court of Appeal ruled in the lord chancellor’s favour, several observations were made about the government’s exceptional case funding scheme.
The agency said that the Ministry of Justice was considering what steps to take following the court’s findings. Information on any further changes would be provided ’in due course’.