The government’s safety net scheme for people denied legal aid because of cuts is ‘unlawful’ and needs to change, a High Court judge has ruled.
Mr Justice Collins said the application procedure for exceptional funding is ‘far too complex’ for applicants in person, while the rigidity of the merits test is ‘wholly unsatisfactory’. The Ministry of Justice told the Gazette it would appeal the decision, in IS v director of legal aid casework and the lord chancellor.
Charity Public Law Project, instructed by the Official Solicitor to the Senior Courts, on behalf of a vulnerable individual ‘IS’, brought the scheme to the court in a test case to challenge the manner in which exceptional funding has been implemented and operated.
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.
Collins said the scheme is not providing the safety net promised by parliament and is defective, as it does not give any right to appeal where an individual who lacks capacity will otherwise be unable to access a court or tribunal.
He described the 13% success rate for exceptional funding as ‘very low’ and said: ‘The scheme is not working as it should.’
Collins said it was ‘difficult to imagine’ a family case, particularly involving contested issues about children, in which there would not be an interference of article 8 rights under the Human Rights Act.
‘I believe that only in rare cases, subject to means and merits if properly applied, should legal aid be denied in such cases. As it is now applied the scheme is clearly wholly deficient in that it does not enable the family courts to be satisfied that they can do justice and give a fair hearing to an unrepresented party,’ he said.
Collins said that he had no doubt such difficulties apply in civil cases other than family.
Criticising the complexity of the forms applicants need to fill to secure funding, he noted that in the first nine months of the scheme only one out of 62 applications by individuals who were not lawyers has succeeded. ‘They are undoubtedly far too complicated for litigants in person,’ he said.
Collins also criticised the scheme for failing to deal with legal help, which is needed to see whether a client needs funding.
And in cases where a judge has requested legal aid because otherwise a fair hearing will not take place, he said it was difficult to see, save in rare cases, how the government could justify failing to comply with the judge’s request.
‘Those who are unable to pay for legal assistance are suffering in a way that parliament could not have intended,’ he said.
Collins suggested that separate forms should be provided for applicants in person, while the Legal Aid Agency should consider providing legal help to enable providers to assess whether a client has a case which should be granted legal assistance.
Jo Hickman, director at PLP said: 'This welcome judgment will help to protect the interests of the many children, patients, and other vulnerable adults who would otherwise be unable to achieve justice.'