IntroductionExceptional case fundingExceptional case funding:test forExceptional case fundingExceptional case fundingExceptional case funding:criteriaExceptional case fundingExceptional case funding
4.1When LASPO was passed, the government sought to address concerns that it would result in injustice by making available exceptional case funding – that is, a discretionary power to fund cases that would otherwise be out of scope in limited circumstances.
4.2If legal aid is not available under Schedule 1 to the Act, it may be possible to apply for funding under LASPO s10. The test for exceptional case funding under section 10(3) of LASPO is:
(a)that it is necessary to make the services available to the individual because failure to do so would be a breach of–
(i)the individual’s Convention rights (within the meaning of the Human Rights Act 1998), or
(ii)any rights of the individual to the provision of legal services that are enforceable EU rights, or
(b)That it is appropriate to do so, in the particular circumstances of the case, having regard to any risk that failure to do so would be such a breach.
4.3Exceptional funding is only available in civil cases where the subject matter is out of scope because of the effect of Schedule 1 to LASPO – either because it is not included in Part 1, because it is excluded by Part 2, or because representation in the particular court or tribunal is not permitted by Part 3. It is not available to clients whose case’s subject matter is in scope, but who are not eligible for legal aid for some other reason.
4.4The client must still meet financial eligibility criteria and their case must meet the merits criteria to qualify for exceptional case funding. Exceptional case applications are dealt with by the exceptional cases funding (ECF) team within the LAA’s High Cost Cases section, and every individual grant must also be personally approved by both the LAA’s Principal Legal Adviser and Head of High Cost Cases.
1Director of Legal Aid Casework Annual Report 2014–15 para 24.4.5Exceptional funding has been perhaps the most litigated area of post-LASPO legal aid, with much of the litigation arising from the Public Law Project’s exceptional funding project. There have been two main strands to the litigation, both of which are discussed below – the tests applied by the LAA, and the process for applications, have both been attacked. But ultimately both strands derive from the same starting point; a belief among practitioners that the scheme has been applied too restrictively with the effect that too few applications have been made and of those too few successfully granted. During the passage of LASPO the government estimated that up to 7,000 applications would be made each year, with around half granted. In fact, in the first year less than a quarter of that number were made, and the grant rate was around 10 per cent. Since then, largely as a result of changes to guidance enforced through the litigation, the grant rate has risen – but numbers of applications remain low. The most recent quarterly statistics as we went to press showed that less than 500 applications were made, with a grant rate of 46 per cent. There have never been more than 500 applications in a quarter.
2Figure 23, Legal Aid Statistics in England and Wales July to September 2016, Ministry of Justice. Available at https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/577475/legal-aid-statistics-bulletin.pdf/. Most successful applications are for immigration, family or inquest cases.