The Director of Legal Aid Casework & Anor v IS

A generic challenge to an administrative scheme succeeds only where unfairness inheres in the system itself. The court must examine the full run of cases, and the claimant must establish more than aberrant decisions or a series of individual failures. The threshold is high. The central question is whether the system can respond appropriately and preserve the irreducible minimum of fairness in its statutory context.

Merits criteria for civil legal aid are lawful where they provide a reasoned and proportionate process which protects applicants from arbitrariness. Neither compulsory representation nor the absence of judicial participation in the funding decision automatically requires legal aid.

The Director of Legal Aid Casework and the Lord Chancellor appealed from the Administrative Court's decision, [2015] EWHC Admin 1965. Collins J had declared that the Exceptional Case Funding scheme under section 10 of the Legal Aid, Sentencing and Punishment of Offenders Act 2012, the applicable merits regulations and parts of the Lord Chancellor's guidance were unlawful.

The respondent contended that the scheme was systemically inaccessible, particularly because its forms were directed to lawyers, unsuccessful applications attracted no remuneration, and applicants lacking litigation capacity required assistance. The appeal also concerned whether the statutory merits criteria were arbitrary or disproportionate and whether paragraphs 8 and 39 of the guidance misstated the governing Convention requirements.

1. Appeal allowed by a majority. Laws LJ, with Burnett LJ agreeing, held that the evidence did not establish that the Exceptional Case Funding scheme was inherently or systemically unfair. The declarations made by Collins J were set aside. Briggs LJ dissented on this issue, although he agreed with the disposition of the challenges to the merits regulations and guidance.
2. A generic challenge required proof of unfairness inherent in the scheme. The court had to consider the full run of cases, distinguish systemic defects from aberrant decisions and apply a high threshold. The decisive question was whether the system had the capacity to react appropriately and preserve the irreducible minimum of fairness in the context of section 10 of the Legal Aid, Sentencing and Punishment of Offenders Act 2012. Proof of several individual failures did not by itself prove systematic failure.
3. The scheme had caused substantial difficulties. The application form was generally beyond the capacity of unassisted applicants, professional participation was important, and applicants with disabilities had an absolute need for assistance. Nevertheless, the evidence about providers was incomplete, operation had improved following Gudanaviciene, and both administrators and providers were experiencing a learning curve. The website and helpline also offered material assistance. The scheme therefore remained within the range of lawful choices available to the Lord Chancellor and the Legal Aid Agency.
4. The merits regulations were lawful. Strasbourg authority permitted legal-aid schemes to select cases in light of limited resources. The controlling requirement was a reasoned and proportionate process which protected applicants from arbitrariness. The regulations used criteria tailored to different services, expressly addressed borderline and unclear cases, and were supported by internal review and judicial review. Judicial participation in the original funding decision was not an indispensable condition of legality.
5. Paragraphs 8 and 39 of the guidance were lawful. Paragraph 8 did not confine funding to the highest-priority cases; read as a whole, it required regard to all the circumstances. Paragraph 39 correctly stated that an obligation derived from article 6(1) arose only where civil rights or obligations were being determined. Article 8 cases were addressed separately.
6. Briggs LJ considered the combination of a lawyer-oriented application process and the absence of a viable economic incentive for lawyers to make applications inherently unfair. The majority concluded that the available evidence did not establish that systemic conclusion.

• Court of Appeal (Civil Division): By [2016] EWCA Civ 464, allowed the appeal and set aside the declarations made by Collins J. Briggs LJ dissented on the legality of the Exceptional Case Funding scheme but agreed on the merits regulations and guidance.
• Administrative Court: By [2015] EWHC Admin 1965, Collins J allowed the judicial review and declared the Exceptional Case Funding scheme, the merits regulations and specified aspects of the guidance unlawful.