IS v The Director of Legal Aid Casework & Anor

The court held that the Exceptional Case Funding (ECF) scheme under sections 1, 9, 10 and 11 of the Legal Aid, Sentencing and Punishment of Offenders Act 2012 (LASPO) was being operated in a manner that failed to provide the statutory safety net envisaged by s.10. The judge found lawful and material principles: (i) an exceptional case determination must be made where refusal of funding would breach Convention rights (s.10(3)), (ii) the R(Gudanaviciene) guidance and the decision-making test in R(G) should be applied, and (iii) procedural accessibility and the practical operation of the scheme (forms, means of application, treatment of those lacking capacity and litigation friends) are central to whether applicants can obtain effective access to their rights under Articles 6 and 8 ECHR.

The court identified multiple systemic defects in operation: overly complex prescribed forms unsuited to lay applicants, a low grant-rate for ECF that discourages providers from accepting work, an unduly rigid application of merits criteria (notably excluding borderline cases), inadequate provision for Legal Help to permit preliminary investigation, lack of an emergency certificate procedure for ECF, and absence of an appeal to a judicial body where refusal would deny the very essence of access to court for those lacking capacity. The Equality Act 2010 s.149 duty had been considered but did not in itself determine the outcome.

Background and parties: The claimant, a Nigerian national with blindness and profound cognitive impairment represented by the Official Solicitor, challenged the refusal of Exceptional Case Funding (ECF) by the Director of Legal Aid Casework (first defendant) and attacked the guidance issued by the Lord Chancellor (second defendant). The claim was litigated along with five comparable cases. An earlier hearing in June 2014 resulted in judicial review in each of those claims and the Court of Appeal subsequently decided R(G) ([2015] 1 WLR 2247), which addressed the correct approach to ECF decision-making.

Nature of the application/relief sought: The amended claim focused on three grounds but the decision before the court was limited to the third ground: that refusal of funding to the claimant breached his Convention rights (Article 8 and Article 14) because without legal aid he could not make an effective application to the Home Office. The Official Solicitor continued the claim in the public interest to test how the scheme treats those who lack capacity.

Issues framed:

• whether the operational ECF scheme frustrated the purpose of LASPO and created an unacceptable risk of breach of Articles 6 or 8;
• whether the merits criteria and their application (including treatment of 'borderline' prospects) were lawful;
• whether the scheme adequately accommodated those lacking capacity and litigation friends and met the public sector equality duty (Equality Act 2010 s.149).

Court’s reasoning and findings: The court analysed LASPO (notably s.10(3) on exceptional case determinations), the regulatory framework (merits and procedure regulations) and the practical operation of the Legal Aid Agency (forms, decision-making, review, payment practices and statistics). The judge concluded that:

• the prescribed ECF forms and process are overly complex and effectively designed for providers rather than lay applicants; the scheme therefore lacks reasonable accessibility;
• the historic very low grant rate for non-inquest ECF (circa 1%, since improving to about 13% in the judge’s view) has deterred providers from taking on ECF work because they are not paid when applications fail, reducing availability of assistance and undermining the statutory safety net;
• the merits regime had become unduly rigid in practice (including the removal of provision for certain 'borderline' cases), producing an impermissible pre-judging of issues that competent representation might alter; the correct focus is whether an unrepresented litigant can present his or her case effectively and without obvious unfairness (the R(G) approach), not an inflexible numerical prospects hurdle;
• there are specific and serious difficulties for those lacking capacity and for litigation friends (including the Official Solicitor) because of the risk of costs liability and the practical impossibility of making or supporting ECF applications without some funded Legal Help or a more accessible process;
• the procedural scheme lacks adequate urgent case procedures for ECF and lacks an appeal to a judicial body in situations where refusal would deprive the applicant of the very essence of access to court.

The judge found that the Equality Act duty had been considered in the departmental EIA but that the expectation that providers’ professional duties would mitigate non-take-up had not in practice been realised; this ground did not prevail on its own.

Result and next steps: The judge concluded that the scheme as operated was not providing the statutory safety net in s.10 and that changes were required; counsel were to be heard as to the form of relief.

Claim succeeded. The court concluded that, as operated, the ECF scheme under LASPO did not provide the safety net required by s.10: the prescribed forms and procedures are insufficiently accessible; the merits criteria were being applied too rigidly (excluding many borderline cases that competent representation could affect); the low grant rate and payment arrangements deter providers; there was inadequate provision for those lacking capacity and for litigation friends; and there was no adequate urgent funding procedure or judicial appeal where refusal would destroy the essence of access to court. The judge therefore found the operational scheme unlawful in the material respects identified and reserved relief pending representations on remedy.

Not an appellate judgment in this record. Procedural history relevant to this claim: original claim lodged 10 December 2013 and amended 14 January 2014; the claim was one of six heard together and judicial review was granted on 13 June 2014; the defendants appealed but in respect of this claimant the appeal was discontinued. The Court of Appeal decision in the associated proceedings is reported as R (Gudanaviciene) v DLAC and Lord Chancellor [2015] 1 WLR 2247 and was relied on in this hearing.