The government’s safety net scheme for people denied legal aid because of cuts in scope is ‘inaccessible to a vast cross-section of lay people’, the High Court was told this morning on day one of what is expected to be a three-day hearing into the scheme.
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.
Charity Public Law Project, instructed by the Official Solicitor to the Senior Courts, on behalf of a vulnerable individual, ‘IS’, is challenging the manner in which the exceptional funding scheme has been implemented and operated.
Matrix Chambers’ Richard Hermer QC, acting for the claimant, said this morning: ‘The manner in which the scheme is operated by the defendant gives rise to unacceptable risk of breach of [the European Convention on Human Rights] and thereby the statutory purpose of section 10 of LASPO.’
Hermer said the scheme was ‘inaccessible to a vast cross-section of lay individuals. It is inaccessible because a vast number of those lay individuals will not be able to get the assistance required to submit an application’.
The claimant’s skeleton argument states that the Official Solicitor has filed ‘a substantial body of evidence which demonstrates that there is an unacceptable risk that individuals will be unable to make an effective application under the safety net scheme and will therefore suffer a breach of their Convention or EU rights’.
The evidence ‘overwhelmingly shows that the scheme as currently operated is profoundly unfit for purpose’.
The skeleton argument states that the cost to a firm of making an unsuccessful application is likely to be ‘considerable’. Unless successful, applications are unpaid.
It says: ‘It is of course possible that some legal aid solicitors will occasionally be willing to assist with section 10 applications. But… such assistance will depend upon firms (which are profit-making businesses) behaving in an economically irrational way.
‘A scheme which depends on irrational behaviour is not a sound scheme.’
Brick Court Chambers’ Martin Chamberlain QC, acting for the lord chancellor (pictured) and the director of legal aid casework, is expected to argue that the claimant’s evidence relates to the early stages of a new exceptional case funding scheme with which providers were unfamiliar.
In the defendants’ skeleton argument, the court is advised to be cautious in drawing conclusions about the exceptional case funding system by reference to the decision-making in the claimants’ witness statements.
‘For example, the fact that an application was refused initially but granted on review, or on receipt of a pre-action protocol letter, does not, on its own, demonstrate that the initial decision-maker made a mistake.
‘The Legal Aid Agency’s experience is that it is common for applicants, when seeking a review or in a pre-action letter, to provide information that was missing from their original application.’
The skeleton argument says ‘it is not unreasonable to expect legal aid providers to incur the relatively small cost of making ECF applications, and to manage their disbursements accordingly.
‘The fact that applications are rejected, and that solicitors spend time seeking review or sending a pre-action letter, does not necessarily indicate that the LAA is making poor initial decisions; the provision of further information on review may make the difference between the grant and refusal of ECF.’
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.
The lord chancellor issued revised guidance yesterday.