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4.6When making an application, you must have regard to the Lord Chancellor’s guidance on exceptional case funding. There have however been difficulties with that guidance and both the inquests and non-inquest versions have been held to be unlawful leading to amendments being made.
4.7The non-inquest guidance was updated on 9 June 2015 in light of the findings of the Court of Appeal in Gudanaviciene (see para 4.10 below). The inquest guidance was updated in August 2015 in light of Letts (see para 4.34 below).
Guidance on non-inquest cases
4.9When LASPO came into force, the Lord Chancellor issued guidance on exceptional funding, which made clear that he interpreted its scope very narrowly and expected very few grants. The result was that both the number of applications and the number – and proportion – of grants were very much lower than expected, and lower than the projections the government had used to reassure Parliament during the Act’s passage.
The Gudanaviciene cases
4.10In
R (Gudanaviciene and others) v The Director of Legal Aid Casework and The Lord Chancellor,
1[2014] EWCA Civ 1622. the Court of Appeal considered the Lord Chancellor’s appeal against the High Court’s earlier decision
2[2014] EWHC 1840 (Admin). that the exceptional funding guidance was unlawful.
4.11The Court of Appeal refused to follow the approach of the High Court either in
Gudanaviciene (Collins J) or the earlier case of
M v Director of Legal Aid Casework and others3[2014] EWHC 1354 (Admin). (Coulson J) in construing section 10 of LASPO. Lord Dyson MR, giving the judgment of the court, set out the test to be applied:
31. We see no warrant for construing section 10(3)(a) as imposing a condition that an ECF determination should only be made where it can definitely be said (Coulson J’s formulation) that refusal would be a breach; or where there is a ‘high level of probability’ that refusal would be a breach (Collins J’s test). There is no need to add a gloss to the wording of the statute ‘would be a breach’. In deciding whether there would be a breach, the Director should apply the principles to be derived from the case-law (some of which is mentioned at para 27 of the Guidance). There is no need for elaboration. When determining whether a complaint of a breach of Convention rights has been established, the ECtHR does not ask itself whether there has definitely been a breach or whether there has been a breach to a high level of probability. It simply asks whether there has been a breach. In our view, this approach should inform the meaning of the words ‘would be a breach’ in section 10(3)(a). We do not consider that the word ‘clearly’ in the Explanatory Notes (see para 9 above) takes the argument any further. We should add that we accept the submission of Mr Chamberlain that the ‘real risk of a breach’ is a concept which has no part to play in the exercise envisaged by section 10(3). Section 10(3)(a) speaks of the situation where a failure to make civil legal services available would be a breach, not where there would be a real risk of a breach. The concept of real risk has no part to play in the question whether the denial of legal aid would amount to a breach of an individual’s procedural rights under the Convention or under Article 47 of the Charter.
32. In short, therefore, if the Director concludes that a denial of ECF would be a breach of an individual’s Convention or EU rights, he must make an exceptional funding determination. But as we shall see, the application of the ECtHR and CJEU case-law is not hard-edged. It requires an assessment of the likely shape of the proposed litigation and the individual’s ability to have effective access to justice in relation to it. The Director may conclude that he cannot decide whether there would be a breach of the individual’s Convention or EU rights. In that event, he is not required by section 10(3)(a) to make a determination. He must then go on to consider whether it is appropriate to make a determination under section 10(3)(b). In making that decision, he should have regard to any risk that failure to make a determination would be a breach. These words mean exactly what they say. The greater he assesses the risk to be, the more likely it is that he will consider it to be appropriate to make a determination. That is because, if the risk eventuates, there will be a breach. But the seriousness of the risk is only one of the factors that the Director may take into account in deciding whether it is appropriate to make a determination. He should have regard to all the circumstances of the case.
4.12In considering the Lord Chancellor’s Guidance in relation to whether there would be a breach of Article 6 ECHR in refusing funding, Lord Dyson said:
45. In our judgment, the cumulative effect of these passages is to misstate the effect of the ECtHR jurisprudence. As we have seen, the Guidance correctly identifies many of the particular factors that should be taken into account in deciding whether to make an exceptional case determination, but their effect is substantially neutralised by the strong steer given in the passages that we have highlighted. These passages send a clear signal to the caseworkers and the Director that the refusal of legal aid will amount to a breach of Article 6(1) only in rare and extreme cases. In our judgment, there are no statements in the case-law which support this signal. For the reasons stated earlier, we do not consider that the reference in X v UK to ‘exceptional circumstances’ provides support for it.
46. The general principles established by the ECtHR are now clear. Inevitably, they are derived from cases in which the question was whether there was a breach of Article 6(1) in proceedings which had already taken place. We accept the following summary of the relevant case-law given by Mr Drabble: (i) the Convention guarantees rights that are practical and effective, not theoretical and illusory in relation to the right of access to the courts (Airey para 24, Steel and Morris para 59); (ii) the question is whether the applicant’s appearance before the court or tribunal in question without the assistance of a lawyer was effective, in the sense of whether he or she was able to present the case properly and satisfactorily (Airey para 24, McVicar para 48 and Steel and Morris para 59); (iii) it is relevant whether the proceedings taken as a whole were fair (McVicar para 50, P,C and S para 91); (iv) the importance of the appearance of fairness is also relevant: simply because an applicant can struggle through ‘in the teeth of all the difficulties’ does not necessarily mean that the procedure was fair (P,C and S para 91); and (v) equality of arms must be guaranteed to the extent that each side is afforded a reasonable opportunity to present his or her case under conditions that do not place them at a substantial disadvantage vis-à-vis their opponent (Steel and Morris para 62).
4.13In making an exceptional funding determination, what is required is a consideration of all the circumstances of the case (and ‘exceptional’ is not a test of itself, nor does it necessarily imply that grants will be rare, contrary to what is stated in the Guidance). The Strasbourg case-law does not require representation in all but the most straightforward of cases; but nor does it only require representation in extreme cases:
… the critical question is whether an unrepresented litigant is able to present his case effectively and without obvious unfairness. The answer to this question requires a consideration of all the circumstances of the case, including the factors which are identified at paras 19 to 25 of the Guidance. These factors must be carefully weighed. Thus the greater the complexity of the procedural rules and/or the substantive legal issues, the more important what is at stake and the less able the applicant may be to cope with the stress, demands and complexity of the proceedings, the more likely it is that Article 6(1) will require the provision of legal services (subject always to any reasonable merits and means test). The cases demonstrate that Article 6(1) does not require civil legal aid in most or even many cases. It all depends on the circumstances.
4[2014] EWCA Civ 1622 para 56.4.14The court’s conclusions in respect of Article 6 were held to apply with equal force to Article 47(3) of the Charter of Fundamental Rights of the EU.
4.15The court went on to consider Article 8, concluding that the guidance stating that Article 8 could not lead to a grant of legal aid in immigration cases was wrong. Instead, the court said that the test to be applied is:
72. Whether legal aid is required will depend on the particular facts and circumstances of each case, including (a) the importance of the issues at stake; (b) the complexity of the procedural, legal and evidential issues; and (c) the ability of the individual to represent himself without legal assistance, having regard to his age and mental capacity. The following features of immigration proceedings are relevant: (i) there are statutory restrictions on the supply of advice and assistance (see section 84 of the Immigration and Asylum Act 1999); (ii) individuals may well have language difficulties; and (iii) the law is complex and rapidly evolving (see, for example, per Jackson LJ in Sapkota v Secretary of State for the Home Department [2012] Imm AR 254 at para 127).
…
75. Para 59 [of the Lord Chancellor’s Guidance] is plainly correct: immigration decisions do not involve the determination of civil rights and obligations. But para 60 is wrong as Mr Chamberlain has conceded. For the reasons that we have given, the W v UK test should be applied in immigration proceedings.
76. What guidance is it appropriate to give as to the circumstances in which Article 8 requires the provision of legal aid in immigration cases? We have already set out at para 72 above some of the relevant circumstances. In addressing these, it will often be helpful to take into account the factors set out at paragraphs 19 to 24 of the Guidance in relation to Article 6(1). In carrying out this exercise in relation to Article 8, the decision-maker should not apply a ‘very high threshold’ for the reasons that we have given in rejecting such a threshold in relation to Article 6(1).
77. Deportation cases are of particular concern. It will often be the case that a decision to deport will engage an individual’s Article 8 rights. Where this occurs, the individual will usually be able to say that the issues at stake for him are of great importance. This should not be regarded as a trump card which usually leads to the need for legal aid. It is no more than one of the relevant factors to be taken into account. The fact that this factor will almost invariably be present in deportation cases is not, however, a justification for giving it reduced weight.
4.16It then considered the various individual appeals, which included family reunion, deportation and trafficking cases. Practitioners dealing with such cases will want to consider those parts of the judgment carefully, though the judgment is applicable to all exceptional cases.
The IS case
4.17IS, one of the original claimants in Gudanaviciene, was granted legal aid and so his case was separated. It was used to bring a challenge not directly to the Lord Chancellor’s guidance, but rather to the LAA’s operation of the scheme.
4.18In
IS (by the Official Solicitor as Litigation Friend) v The Director of Legal Aid Casework and The Lord Chancellor5[2015] EWHC 1965 (Admin). – a lengthy, detailed and comprehensive judgment – Collins J noted a series of problems with the scheme as it has been implemented by the LAA:
•The crucial test for whether exceptional funding should be granted, as laid down by the Court of Appeal in Gudanaviciene, is ‘whether an unrepresented litigant is able to present his case effectively and without obvious unfairness’ (para 24).
•Even after Gudanaviciene, the success rate for applications is very low (para 29).
•The forms are unnecessarily complex, repetitious and do not reflect the right test for whether funding should be granted (paras 56 and 80).
•The forms require legal assistance to complete. The LAA should make available a form that can be filled in by an unrepresented applicant (para 54).
•Consideration should be given to making Legal Help available for solicitors to make initial enquiries, decide whether an application is justified, and make it (para 57).
•The revised Lord Chancellor’s guidance, issued in response to Gudanaviciene, still does not give effect to it and places too many restrictions on when funding should be granted (paras 66 to 71).
•‘The belief that because courts and tribunals have to deal with litigants in person legal representation can be refused is one which must be very carefully applied. It should only be used to refuse an application if the issues are truly relatively straightforward’ (para 71).
•In cases where ‘a judge seized of the material proceedings has requested’ representation ‘because otherwise a fair hearing will not take place … it is difficult to see that save in a rare case to fail to comply with the judge’s request [to grant exceptional funding] would be justified. It is not generally appropriate for a caseworker who is not apprised of the full circumstances to second guess the judge’s view. There must be a very good reason indeed for such a refusal.’ (para 72).
•The LAA’s urgent applications procedure is not satisfactory and the absence of a mechanism for issuing an emergency certificate is unreasonable (para 78).
•The scheme ‘is not, as it is operated, meeting its need to ensure that an unrepresented litigant can present his or her case effectively and without obvious unfairness. That extends to the need to ensure that he or she has access to assistance which may be needed, as in IS’s case, to make representations to the relevant authority to achieve a particular purpose. The same need exists as for hearings before a court or tribunal.’ (para 79).
•‘The system is defective in failing to provide for a right of appeal to a judicial person against a refusal where the result would be an infringement of the very essence of the right of access to a court.’ (para 93).
4.19The result was that Collins J found that the way the LAA was operating the scheme was unlawful. He also declared parts of the Merits Regulations unlawful, along with parts of the non-Inquests exceptional funding guidance.
4.20The Lord Chancellor therefore amended the merits regulations as they impacted the prospects of success test for granting certificates. In particular, the ‘borderline’ category – removed in 2014 – was reinstated. The old ‘poor’ category was redefined from below 50 per cent to between 20 per cent and 50 per cent, with a new ‘very poor’ category introduced for below 20 per cent cases. The test was amended so that legal aid would only be automatically refused in ‘very poor’ cases, but to be granted funding in poor and borderline cases the applicant had to show funding was necessary to prevent a breach of convention rights. No change was made to the exceptional cases guidance.
4.21The Lord Chancellor also appealed, and the case came before the Court of Appeal, with judgment given in May 2016.
6IS v Director of Legal Casework and Lord Chancellor [2016] EWCA Civ 464. By a majority of 2:1 (Laws and Burnett LJJ, Briggs LJ dissenting), the Court found that while there were flaws in the operation of the scheme, they were not sufficient to render it unlawful. The Court unanimously allowed the Lord Chancellor’s appeal on the issues of the lawfulness of the merits criteria and funding guidance.
Gudanaviciene was distinguished on the basis that a) the guidance has since changed, and b) that case was concerned with individual applications for funding, not the method of operation of the scheme as a whole; a series of individual failures does not necessarily show systemic failure.
4.22Laws LJ said that it is necessary to look at the range of cases, and more than error in individual cases is required; unfairness – to a high threshold – must be shown in the scheme itself. He said that it is important to distinguish a bad scheme and one that is operated badly. And a judge must be careful not to stray into matters of underlying policy.
4.23All sides accepted that there had been flaws in the operation of the scheme. Improvements were needed. But the evidence supplied in IS of experience of use of the scheme was of limited value and unreliable. The nature of the scheme meant that some complexity, including in the application form, was inevitable. Significant improvements had been made since Gudanaviciene, showing that both the LAA and providers were on a learning curve. That there was a low number of applications, and a low success rate, didn’t of itself show that the scheme was unfair, and the resources available to legal aid are limited. Collins J hadn’t shown how his individual criticisms of the scheme added up to systemic unfairness, and it was Laws LJ’s ‘impressionistic’ judgment that they did not.
4.24Dissenting, Briggs LJ said that he would find the scheme unlawful. Although he agreed with much of what Laws LJ had said, he found that a key feature of the scheme was that its complexity was such that legal assistance was required. As there was no payment available for unsuccessful applications, and such a low success rate, it is uneconomic for lawyers to take part it in it. That is an inherent flaw in the scheme. A learning curve might help those applications that are made, but is no solution for those that aren’t made at all.
4.25This was not a wholly satisfying judgment. The Court accepted – and made – a number of powerful criticisms of the operation of the scheme and of individual injustices that have resulted. Laws LJ frankly accepted that the Court had not read all the evidence presented to it – while still concluding that much of it was unreliable or of limited value. Overall, the view of the majority appeared to be that the scheme was badly operated, but not quite bad enough to be unlawful. But given the extent of the criticism set out, the impression left is of a conclusion that the whole was less than the sum of the parts.
4.26Some six months after the judgment in Gudanaviciene, the Lord Chancellor issued revised guidance for non-inquest cases. The guidance deals with the principle Articles of the ECHR (6 and 8) and with Article 47 of the EU Charter in general terms, and then briefly considers the individual categories of law in an annex. No further changes were made following IS, either in the High Court or Court of Appeal, and so this is the most recent version of the guidance.
The Lord Chancellor’s Guidance – Article 6 ECHR
4.27The guidance says that there is a three-stage test that caseworkers must consider:
1)Does the case involve the determination of civil rights and obligations?
2)If yes, will withholding legal aid mean the applicant will be unable to present his or her case effectively, or lead to an obvious unfairness in the proceedings?
3)If yes, what are the minimum services required to meet the legal obligation to provide legal aid?
4.28It will be seen from this that the LAA’s focus remains on only granting exceptional legal aid where it is absolutely necessary to do so, and then only to the minimum extent possible.
4.29Further guidance is provided on factors to be taken into account in determining whether the applicant can present his or her case effectively and without obvious unfairness. These include the importance of the issues at stake, the complexity of law fact and procedure, and personal characteristics of the applicant. Specific guidance for adults who lack capacity and children is given. However, some of the principles set out in Gudanaviciene – for example para 46, quoted above – are rather skated around.
The first test – will withholding legal aid result in an inability to present a case or other obvious unfairness?
4.30The guidance sets out a series of factors to be taken into account. These are:
•The importance of the issues at stake. Are the potential consequences for the applicant so objectively serious as to add weight to the need for public funds? Is the case ‘merely’ a money claim, or is it about issues of life, liberty, health, welfare, physical safety or protection from abuse, or about adjustments to medical or other care impacting on the applicant’s ability to live independently?
•The complexity of the legal factual procedural or evidential issues. This includes the volume and complexity of the evidence and whether expert evidence is required or must be tested, as well as the extent to which the evidence has already been dealt with in earlier hearings or hearings in lower courts or tribunals. It will also include the complexity of the law and of the procedure, including whether the case is before a specialist court or tribunal and the extent to which it can assist the applicant.
•The extent to which the applicant is capable of presenting their case effectively without the assistance of a lawyer. This will be influenced by the complexity of the case, as in the previous factor, but also by the characteristics of the applicant and the degree to which the court or tribunal is used to assisting litigants in person. Total equality of arms is not required, as long as the applicant is not placed at a substantial disadvantage. Relevant factors include the applicant’s level of education and skill in English, caring responsibilities or disabilities, and relevant skills or experience. The LAA will also take into account the extent of any other assistance available, including previous legal advice or the availability of a Mackenzie friend. If the applicant is a child, the role of any litigation friend, official solicitor or CAFCASS will be taken into account, as well as the level of the child’s maturity and intelligence. The guidance says that where court rules require a litigation friend and none other than the official solicitor is available, this will be ‘important (and potentially determinative)’. Similar considerations apply in the case of an adult lacking capacity.
The second test – extent of the services required
4.31The guidance says that where the LAA is satisfied that legal aid is required, it should be limited to the minimum services required to meet the need for funding – through providing only specific levels of service, or through the placing of limitations on certificates. The guidance requires caseworkers to consider whether full representation is required, or whether advice and perhaps the preparation of written submissions using Legal Help would be enough. The guidance also says that the right to exceptional funding under the Article 6 route requires there to be a determination of civil rights and obligations – and an application for Legal Help to provide advice would not generally involve such a determination.
The Lord Chancellor’s guidance – Article 8 ECHR
4.32Unlike the previous version, the new guidance acknowledges that Article 8 cases can lead to a grant of legal aid. However, the discussion of Article 8 in the guidance is very brief. It refers back to the factors set out in the Article 6 discussion as being required to be taken into account in determining applications.
4.33Although it will be necessary to take into account the guidance in making applications for exceptional funding, both for Article 6 and Article 8-based applications – not least because it is what caseworkers will use in considering them – in our view it doesn’t go far enough to deal with the concerns expressed by the Court of Appeal in Gudanaviciene. Paragraph 6 of the guidance specifically reminds caseworkers that they must have regard to Gudanaviciene as well as the guidance itself. In making applications for exceptional funding where you consider that your case comes within Gudanaviciene but perhaps would be caught by the minimising intent of the guidance, it might be as well to emphasise that paragraph in the application.
Guidance on inquest cases
4.35After considering carefully the content of the guidance in light of the obligations of the State under Article 2 ECHR, and reviewing the law relating to Article 2 Green J concluded that:
55. … the typical caseworker would find the conclusion that he or she had to take a decision, based on actual evidence that the State was arguably in breach as a precondition to a consideration of need, an irresistible one. References to arguability of breach as the lynchpin of the right to funding permeate the entire Guidance. There is no reference to there being any other possible test or to there being exceptions to this rule. Indeed, it is explicitly said that the procedural obligation arises (in a narrow range of circumstances) ‘only’ (cf para [9]) where evidence suggests an arguable breach by the state. There is hence no room on the basis of the Guidance for the possibility that the duty might arise in other circumstances not involving arguable breach.
56. Further some of the circumstances where the law, quite clearly, lays down that breach is irrelevant (eg deaths in custody) are explained and analysed in terms of the probability of the evidence leading to a conclusion of arguable breach.
4.36He noted:
70. The case law thus quite clearly recognises a legal right for the next-of-kin to be involved to protect ‘legitimate interests’; and the analysis of purposes and objects above informs what those interests may be. The right to legal aid flows directly from this recognition since in many cases if it were not available the right to involvement would be rendered nugatory and the purpose behind Article 2 thwarted by a decision of the state.
4.37And so:
94. I have set out at paragraph [54] above my analysis of the Guidance and as to the extent to which it rests upon a test of arguable breach. For the reasons that I have set out above in my judgment this contains a number of errors.
95. First, the Guidance indicates that there is but one trigger for Article 2, namely evidence of arguable breach by the State: See, eg para [54(iv)] above. This is incorrect in that case law identifies a variety of circumstances and types of case of real public importance and significance where the duty arises independently of the existence of evidence of arguable breach.
96. Secondly, where the Guidance refers to case types where the test may be modified (for example in the case of death in custody) it persists in articulating the test upon the basis of arguability of breach. Since these case types include cases where the law now makes clear that the duty can arise automatically the reference to the arguability test is wrong in law: See para [54(vii)] above.
97. Thirdly, and related to the first two errors, is the failure even at a broad level to acknowledge the existence of cases where the test is other than arguability.
4.38Green J therefore concluded:
118. The test is hence: Would the Guidance if followed (i) lead to unlawful acts (ii) permit unlawful acts or (iii) encourage such unlawful acts? In my view for the reasons already given the Guidance would do all of these three things.
The ‘unlawful act’ being a refusal of legal aid where it was required, or a failure to consider the right legal basis for determining an application.
4.39This led the Lord Chancellor to issue revised guidance taking account of the judgment in
Letts.
9See www.gov.uk/government/publications/legal-aid-exceptional-case-funding-form-and-guidance. The guidance sets out the situations where the Lord Chancellor believes funding should and should not be granted, but also recognises that this is a developing area of the law and says that caseworkers deciding applications should take into account case law that emerges. Funding will only be granted where Article 2 ECHR duties are engaged, or where there is significant wider public interest in the applicant being represented at the inquest (LASPO s10(4)).