“There is no doubt that too many people are finding it impossible to enforce basic rights.”
In April 2013, the Legal Aid, Sentencing and Punishment of Offenders Act 2012 (LASPO) made the most sweeping cuts to legal aid since it was established in 1949. While LASPO removed legal aid from most family, immigration, welfare benefits and housing cases, it extended exceptional case funding (ECF) to provide a ‘safety net’ where denial of legal aid would breach rights under the European Convention on Human Rights (ECHR) or EU law.
Two years ago, I had the privilege of working with the Public Law Project (PLP), one of the best charities operating in the justice field, as a consultant on IS v Director of Legal Aid Casework and another
, which went before Collins J in July 2015 ( EWHC 1965 (Admin)
) and before the Court of Appeal in March 2016 ( EWCA Civ 464
). PLP’s project on ECF has now ended – although it still offers training and support – so now seems an appropriate time to pay tribute to what the organisation accomplished and to assess the problems that still exist.
When the ECF scheme came in, there were pitifully few applications and only one per cent of those resulted in grants. PLP set out to help providers to challenge refusals by threatening and lodging judicial review proceedings.
The first such challenge, R (Gudanaviciene and others) v Director of Legal Aid Casework and another  EWCA Civ 1622
, resulted in the redrafting of the lord chancellor’s guidance on ECF being declared unlawful and a finding that immigration decisions that engage ECHR article 8 must be considered for ECF.
IS, a blind and disabled Nigerian man, was granted ECF. He then brought a separate judicial review of the lawfulness of the scheme. PLP collected 85 witness statements about the experiences of legal aid providers from all over the country. One was also from the only litigant in person ever to have succeeded in making an application, who described her experience as ‘nightmarish’.
In July 2015, Collins J found the ECF scheme to be unlawful:
The main problem lies in the forms which are prescribed. They are far too complicated and are not at all helpful to lay persons. Providers have difficulties with them and the small level of grant has unquestionably, on the evidence which has not shown to be erroneous, led to the unwillingness of providers to take on clients … (para 80).
In 2016, the Court of Appeal allowed a government appeal, though Laws LJ criticised the ‘extent of the difficulties’ as ‘troubling’ (para 57). This was hugely disappointing, raising as it does the question of just how much evidence needs to be provided to show systemic failure. However, improvements have resulted, despite the failure of the court to intervene. In an article in Open Justice (‘How safe is the legal aid “safety net”?’, 10 April 2017), PLP’s legal director, Alison Pickup, lists them:
The form has been simplified. The urgency procedure has been improved (although … it remains inadequate). It is now possible to apply for ‘ECF for ECF’ so that providers can be paid for time spent investigating or gathering evidence in support of an application for ECF.
And, she says, the number of ECF applications has increased so that from July to September 2016 there were 341 new ECF applications; the success rate was 49 per cent; 22 per cent of review requests were successful; and (please note, immigration lawyers) as many as 71 per cent of immigration ECF applications succeeded.
In my mind, however, there is no doubt that too many people are finding it impossible to enforce basic rights. There is no payment for unsuccessful applications and the hours it takes to apply are hugely off-putting. Nobody could have done more than PLP. But we need politicians who believe in access to justice and I hope everyone remembered that when they decided how to vote in the general election.