Legal aid update
Legal aid practice and procedure update:
exceptional case funding scheme deemed lawful by CA
Simon Pugh comments on (1) Director of Legal Aid Casework (2) The Lord Chancellor v IS (a protected party, by his litigation friend the Official Solicitor) [2016] EWCA Civ 464.
About the author
Simon Pugh is a non-practising solicitor and worked formerly in high street practice and for Shelter, the housing charity. He is co-editor , with Vicky Ling, of LAG Legal Aid Handbook 2015/16.
Facts Exceptional funding is available - subject to means and merits - on cases outside the scope of legal aid where refusal would be, or would risk, a breach of the applicant’s enforceable EU rights or those under the European Convention on Human Rights. Collins J held that the scheme and its operation were systemically unfair ([ 2015] EWHC 1965 (Admin)) . The director of legal aid casework appealed.
Decision Laws and Burnett LJJ recognised that the evidence showed a series of flaws and justified criticisms of the scheme’s operation; however, Collins J had not shown how they added up to inherent unfairness.
All sides accepted that there had been flaws in the operation of the scheme: improvements could, and should, be made. However, the lack of applications and the low success rate of those who do apply is not a measure of unfairness. The Legal Aid Agency and providers have been on a learning curve, and there are limited resources available to legal aid. Overall, the evidence did not show that the scheme was intrinsically unfair. The merits criteria were balanced and proportionate, not arbitrary, and the guidance was lawful.
Dissenting, Briggs LJ agreed that Collins J had not shown how the individual criticisms made of the scheme amounted to systemic unfairness; nevertheless, he felt that they did so. Such a complex scheme needed lawyers to navigate it. Yet the scheme was uneconomic for lawyers to use, and pro bono could not fill the gap. Laws LJ’s ‘learning curve’ might improve its operation for applications submitted, but could not remedy this inherent flaw (para 74).
Comment Despite conceding that he had not read all the evidence, Laws LJ dismissed much of it even though, as Briggs LJ pointed out, its substance was unchallenged. Yet more was explained away, for example, in 31 cases where exceptional funding was granted, 23 cases required threatened or actual judicial review proceedings first.
However, this might show not that the underlying decision-making process is unfair or lacks an effective appeal process, but rather that judicial review is a useful corrective and so no right of appeal is necessary. Many criticisms of the scheme were well founded. Yet while this is ‘troubling’ , with ‘real difficulties ’ and improvements still needing to be made, there is a ‘learning curve’ , so Laws LJ’s ‘impressionistic’ judgment is that the scheme is not unlawful (paras 57, 54, and 55 respectively). Perhaps the distinction between a badly operated scheme and a bad scheme is not easy to draw. But the conclusion of the majority that the whole is less than the sum of the parts is not, in this case, entirely persuasive.
This case has implications for the whole legal aid scheme, not just exceptional funding. The high court found the merits test unlawful, so the Lord Chancellor revised the test, reinstating legal aid for ‘borderline’ cases and extending funding to cases with less than 50% chance of success. It is now possible that this wider merits test will be withdrawn, once again removing such cases from legal aid altogether. It remains to be seen whether there will be a further appeal.