IS v The Director of Legal Aid Casework & Anor

Exceptional case funding under Legal Aid, Sentencing and Punishment of Offenders Act 2012 must be assessed by reference to the statutory test, not an assumed high or exceptional threshold. The question is whether refusal of assistance would breach, or create a relevant risk of breaching, Convention or enforceable EU rights.

Effective access requires consideration of the importance of the issues, the complexity of the facts, law and procedure, and the applicant’s ability to present the case fairly. Merits criteria may be applied, but they must not require an even or better than even prospect in every case, or prejudge what competent representation may achieve. A person lacking capacity must have access to a judicial appeal where refusal would otherwise deny access to a court or tribunal.

The claimant, a Nigerian national lacking capacity and represented by the Official Solicitor, challenged the refusal of exceptional case funding for assistance in making an immigration application engaging his Article 8 rights.

The claim was continued as a test case after the claimant obtained funding. Earlier judicial review proceedings concerning the exceptional funding guidance had resulted in decisions of the Administrative Court and Court of Appeal, but the present claim was limited to the claimant’s individual Article 8 challenge and wider defects in the operation of the scheme. The issues included accessibility of the application process, the merits criteria, equality duties, and the absence of an adequate judicial appeal.

1. Outcome. The claim succeeded in substance. The court held that the exceptional case funding scheme, as operated, failed to provide the statutory safety net required by section 10 of Legal Aid, Sentencing and Punishment of Offenders Act 2012.
2. There was no justification for imposing a high or exceptional threshold. Section 10 requires funding where refusal would breach Convention or enforceable EU rights, and permits funding where there is a risk of such a breach. The seriousness and likelihood of the risk are material, but the statutory test must be applied in all the circumstances.
3. The relevant question is whether an unrepresented person can present the case effectively and without obvious unfairness. Importance, factual, legal and procedural complexity, the need for evidence, and the applicant’s capacity are relevant. The approach applies to Article 6 and to the procedural requirements inherent in Article 8.
4. The prescribed forms were excessively complex for applicants in person and failed adequately to address preliminary Legal Help, including investigation needed to establish whether further assistance was required. The absence of payment for necessary preliminary work materially discouraged providers from assisting vulnerable applicants.
5. The merits approach was unlawful. It was unreasonable to require an even or better than even chance of success in every case. The assessment had to consider what competent representation might achieve, rather than prejudging the result on untested material. Borderline cases could not automatically be excluded, although a manifestly unwinnable case could properly fail.
6. Where refusal of funding would prevent a person lacking capacity from accessing a court or tribunal because no litigation friend was available and the Official Solicitor could not act without funding, the absence of a right of appeal to a judicial body made the scheme defective. Judicial review was not an adequate substitute.
7. The equality ground failed. The defendants had conducted a sufficiently rigorous assessment under section 149 of Equality Act 2010. The duty required due regard, not achievement of a particular outcome.

The judgment records that earlier conjoined judicial review claims concerning the exceptional funding guidance were granted by the Administrative Court and appealed to the Court of Appeal. The appeal in this claimant’s case was discontinued. Those decisions are excluded from the cited-case analysis because they arose in the same litigation.