A challenge to the government’s safety-net scheme for people denied legal aid because of cuts in scope is to be heard in the High Court tomorrow.
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.
The scheme was introduced in April 2013, when the Legal Aid, Sentencing and Punishment of Offenders Act 2012 came into force, taking much of civil justice out of the scope of legal aid.
Independent national legal charity Public Law Project (PLP) has been instructed by the Official Solicitor to the Senior Courts, on behalf of a vulnerable individual, ‘IS’, to challenge the scheme’s operation. The Law Society is supporting the matter by providing a limited adverse costs indemnity.
The Official Solicitor is an independent statutory office holder who acts as a last resort litigation friend for parties who lack the mental capacity to conduct their own cases.
The claimant will argue that the operation of the scheme, by the lord chancellor and Legal Aid Agency, is unlawful because it ‘obstructs the very purpose of the legislation – to provide legal aid funding to those who need it most’.
PLP announced yesterday it would be producing ‘compelling evidence in the form of individual case studies that show that the application process is long drawn out, complex and time-consuming’.
It said: ‘Solicitors are not paid unless the application succeeds, so many of them are unwilling to make applications. Persons who are not represented find the application process inaccessible. Many applications only succeed if solicitors take them to the point of threatening a judicial review.’
The challenge comes after the Court of Appeal ruled in December that the government’s guidance on exceptional case funding for legal aid in immigration cases was unlawful.
A Ministry of Justice spokesperson said: 'We believe that the exceptional funding scheme is functioning as intended and do not accept allegations that the system is defective. The purpose of the scheme is to provide a route to funding for those cases which are outside of the general legal aid scheme but where funding is legally required. It does not provide a more general power to fund such cases.'