Challenging but not impossible
Public funding for inquests has survived relatively unscathed, but the process of applying for it is fraught with difficulty. Gemma Vine and Komal Hussain set out what’s available and provide some tips.
Legal aid may be down, but it’s not out completely – at least not yet. Legal Action’s ‘Use it or lose it’ series aims to highlight what remains of legal aid, and to show practitioners how they can make the most of it to help their clients obtain much-needed access to justice.
Funding for inquests has largely remained untouched by the Legal Aid, Sentencing and Punishment of Offenders Act 2012 (LASPO). There are, however, still a number of difficulties for lawyers and bereaved families to overcome when applying for inquest funding because of changes to the Legal Aid Agency (LAA) team, new inquest guidance from the Lord Chancellor and new provider packs.
FUNDING AND LASPO
Funding for inquests is provided for under LASPO s10. It is available if:
•the death involves arguable breaches of article 2 of the European Convention on Human Rights (the convention); or
•the death involves wider public interest; and
•it is necessary for the family to be represented at the inquest.
Article 2 of the convention
It is well established that article 2 places three separate duties on the state:
•a negative duty to refrain from taking life, except in specific circumstances;
•a positive duty to conduct a proper and open investigation into deaths for which the state might be responsible (McCann and others v UK App No 18984/91, 27 September 1995; (1996) 21 EHRR 97) (the procedural or investigative duty); and
•a positive duty to protect life, in certain circumstances, which includes both a general duty and an operational duty.
The Lord Chancellor’s Exceptional Case Funding Guidance (Inquests) (the Lord Chancellor’s guidance) contains a two-stage test for funding to be granted if: (1) there has been a likely breach of a substantive obligation; and (2) funded representation is required to discharge the procedural obligation to investigate under article 2.
Article 2 is normally engaged in the following types of cases:
•suicide in state detention (whether in prison, police custody or an immigration detention centre, or when a person is formally detained under the Mental Health Act 1983);
•suicide of informal patients in hospital if the state has assumed responsibility for the individual’s welfare and safety and there was an immediate and real risk to life as per Rabone and another v Pennine Care NHS Foundation Trust  UKSC 2, 8 February 2012; and
•death as a result of the actions of state agents, eg a police shooting.
There are, of course, other situations where article 2 may be engaged (see P (by his litigation friend the Official Solicitor) v Cheshire West and Cheshire Council and another; P and another (by their litigation friend the Official Solicitor) v Surrey County Council  UKSC 19, 19 March 2014), but these examples illustrate the starting point that there needs to have been an assumption of responsibility by the state.
One area that remains problematic both in the coroners’ courts and for funding applications is when a death is potentially as a result of natural causes. If a post-mortem concludes death by natural causes, it can be problematic to secure funding for an inquest, regardless of whether or not the death took place in state detention. The Lord Chancellor’s guidance specifically refers to natural causes deaths, stating that article 2 is unlikely to be engaged in those cases. However, there is no basis to argue that the substantive duty under article 2 cannot be engaged in natural causes deaths.
In Keenan v UK App No 27229/95, 3 April 2001; (2001) 33 EHRR 913, the European Court of Human Rights recalled (at para 111) that ‘the authorities are under an obligation to protect the health of persons deprived of liberty’. This relates to the obligation to have systems in place to provide access to healthcare and an obligation to positively provide it. Each case will be fact-dependent, but if there are arguable systemic failings within, for example, the custodial setting rather than a case where there are only individual failings, it is still possible to argue that article 2 is engaged.
In addition, a death in hospital will not usually satisfy the criteria for systemic failings if it arises out of allegations of ordinary negligence, such as an individual’s failings, as opposed to allegations of negligence of a systemic nature (R (Humberstone) v Legal Services Commission  EWCA Civ 1479, 21 December 2010) such as a lack of policies, procedure and staff training.
Obtaining funding may be assisted if a view or determination can be obtained from the coroner at a pre-inquest review about the involvement of article 2 and whether there should be a Middleton inquiry (R (Middleton) v West Somerset Coroner  UKHL 10, 11 March 2004;  2 AC 182). This is not, however, determinative and it is still necessary to demonstrate the relevant breaches to the LAA to obtain funding.
The Lord Chancellor’s guidance, however, may be subject to change due to the recent decision in R (Letts) v Lord Chancellor and another  EWHC 402 (Admin), 20 February 2015 (where a bereaved sister was initially denied access to funding by the LAA for legal representation). The court considered the Lord Chancellor’s guidance, concluding that it did not reflect the law and wrongly treated all article 2 cases as requiring evidence of an arguable breach by the state in order for funding to be granted for representation.
The court found that there was a failure to recognise the category of case where the investigative duty arose automatically. The guidance was also said to be inadequate, though at present it remains in place and has not been amended.
Wider public interest
Wider public interest is the most difficult category under which to obtain funding. The requirement is that the inquest is likely to offer significant benefits for a class of person, other than the applicant and their family. Examples may include the identification of dangerous practices, systemic failings or other findings that identify significant risks to the life, health or safety of other persons.
Significant benefit is assessed with reference to a number of factors, including:
•what the benefits are;
•whether they are more or less tangible;
•whether they will definitely flow to other persons or whether this is just a possibility; and
•the number of people who will benefit (this usually needs to be more than 100).
In addition, the applicant must demonstrate that it is necessary for the family to be legally represented at the inquest in order to achieve the significant wider public interest (see below).
Where there have already been other investigations prior to the inquest and there have been recommendations for improvements to systems or training, this will reduce the potential for significant benefit to flow from the inquest. To avoid this, you need to show that investigations have failed or omitted to consider other evidence and issues that could be brought out at inquest, or that the family did not play a significant part in those investigations.
Necessity of representation
Even if the first two requirements of LASPO s10 are satisfied, it is still necessary to show that the family needs to be represented at the inquest. The LAA considers three factors in assessing this:
•the nature and seriousness of the allegations against the state;
•the particular circumstances of the family; and
•whether previous investigations have taken place and whether the family has been involved.
Nature and seriousness of the allegations
When determining whether article 2 is engaged or whether the death involves a significant wider public interest, you should have already identified the nature and seriousness of the allegations and should refer the LAA back to those.
Particular circumstances of the family
In addition to looking at the individual circumstances of the family (ie physical/mental health status, social/educational background) you should also draw the LAA’s attention to the following factors:
•Where article 2 is engaged, the coroner will usually invite properly interested persons to address them with submissions concerning the appropriate legal conclusions. This can involve lengthy and complex legal argument. The family is unlikely to have the ability to prepare such argument, which is why representation is necessary – to allow for an equal footing with state agencies, which have greater means to access legal representation.
•Legal help cannot be used to help prepare submissions, set out any concerns and deal with particular questions that the family may have at inquest. Further documentation and evidence usually comes to light at the inquest hearing. All properly interested persons have a right to examine witnesses. Family members may not have the requisite skills to do this effectively. They may also not have the relevant knowledge and understanding of case-law and the statutory framework to deal with and appreciate matters that may arise.
•There is usually a vast amount of evidence surrounding policies, acts and/or omissions that may have been causative in the deceased’s death. These are likely to be strongly disputed by the state agencies, which may want to ensure any failings by them are not found to be causative in the deceased’s death. The coroner has a duty to remain independent and, in such circumstances, may not be able to adequately represent the family’s interests.
The LAA should be reminded of these points, and any other relevant factors, when attempting to secure funding where an individual has died in circumstances giving rise to an article 2 breach. It should also be referred to the judgment in R (Khan) v Secretary of State for Health  EWCA Civ 1129, 10 October 2003, where the court emphasised that inquest would not be effective unless it allowed for the effective participation of the family. It should be argued that the above factors would make it impossible for the family to have an effective participation in the inquest without legal representation.
Whether previous investigations have taken place and whether the family has been involved in such investigations
The LAA will need to be told about what investigations have already taken place. If the family has not been involved in these investigations, the LAA should be told. If it has been involved, reference should be made to the fact that the investigations may have been limited in scope and whether there are any outstanding issues, for example, any issue not looked at already by the Prisons and Probation Ombudsman or the Independent Police Complaints Commission.
Once the tests above are satisfied, the family must still satisfy the financial eligibility limits set out in the Civil Legal Aid (Financial Resources and Payment for Services) Regulations 2013 SI No 480 (CLA(FRPS) Regs) and LASPO s10(6) sets out who is defined as a family member of the deceased.
Who has to provide means information normally depends on the deceased’s personal circumstances at the time of their death:
•if the deceased was a child, means information from the parent or parents or anyone with parental responsibility for the child must be provided;
•if the deceased was an adult, means forms from their partner and adult children; and
•if the deceased was an adult who had no partner, means information from their parents, adult children and siblings.
The starting point is to try to obtain the means information from all family members as listed above. However, if a family member (who is not the main client) refuses to provide the information, it is still worth applying for funding and submitting alongside the application evidence of your attempts to obtain the financial information from that family member. It will then be a matter for the LAA to decide whether it will deal with the application without that information.
Family members should also be aware that just because they would not normally be financially eligible for funding under the regulations, the LAA director can use his discretion to waive the eligibility limits if, in all the circumstances, it would not be reasonable to expect the family to bear the full costs of legal assistance at inquest.
The application of this discretion will depend on the particular facts of the case and the nature and seriousness of the allegations, together with the family’s financial circumstances. The director can, for example, waive the eligibility limits but ask the family to pay a contribution to the inquest costs. The contributions may be equally waived in whole or in part.
If funding is granted, the certificate will cover the following legal costs:
•advocacy costs of counsel or a solicitor at any pre-inquest review hearing/inquest;
•costs of another legal representative attending the hearing, if justified (usually sending a trainee solicitor or paralegal to the inquest to take full notes and support the family);
•costs of drafting a brief/instructions to counsel for the inquest;
•counsel’s written submissions or arguments; and
•conference meeting costs immediately before the hearing.
Funding can also be obtained for travel expenses and accommodation for counsel and/or the solicitor and the family. In certain circumstances, you can apply for ‘Very High Cost Case’ rates, which are set out in the Criminal Legal Aid (Remuneration) (Amendment) Regulations 2013 SI No 435. This is dependent on the amount of paperwork disclosed and the complexity of the issues at the centre of the inquest. However, the hourly rates for attending the inquest are much lower than those provided for under the CLA(FRPS) Regs.
Legal help is available in inquest cases to advise, assist and prepare the family for the inquest.
Even if you cannot obtain exceptional case funding for representation because the particular circumstances do not fall within one of the prescribed categories, legal help can still be used to prepare full written submissions to the coroner, on behalf of the family, setting out their concerns, issues and any questions for the witnesses. The provider pack states that legal help can also cover the attendance of a McKenzie friend to offer informal advice at inquest with the coroner’s permission. In these cases, the family must be financially eligible.
If a family is not financially eligible, you can make an application to the director to use his discretion to disapply the eligibility limits in respect of a legal help inquest application. You will have to address the same test as when applying for exceptional case funding.
The costs of experts attending the inquest are not paid by the LAA as they should be met by the coroner’s court where the coroner has concluded that the expert’s attendance at the inquest is necessary because the evidence is relevant to the investigation of the death.
An expert report may, however, be obtained under the legal help scheme to assist in the preparation of the client’s submissions or questions and the preparation of the client’s case. Again, the family will need to be financially eligible under the legal help scheme.
IMPACT OF INQUESTS
Inquests can have a wide-reaching impact on society. Findings in inquests can result in a potential overhaul of local and national policies, procedures and the law. The regulation 28 prevention of future deaths report, under the Coroners (Investigations) Regulations 2013 SI No 1629, imposes a duty on the coroner to report and address any shortcomings of regulatory bodies revealed during the course of an inquest to them. A regulation 28 report can be made even when the matters are not causative factors in the death.
The relevant bodies then have 56 days to respond to such a report with details of any action taken or proposed, including a timetable for action. If no action is proposed, an explanation must be provided.
A regulation 28 report is an effective mechanism in ensuring inadequate systems and practices are considered by those in authority. In recent inquests, for example, coroners have made criticisms around the law and policies surrounding: the Police and Criminal Evidence Act 1984 and 17-year olds; safeguarding adolescents and young adults; and the transition process of adolescents from child and adolescent mental health services to those for adults.
LAA funding for inquests is not straightforward and the application process requires careful thought and preparation for which legal representatives are unlikely to be able to recover their costs. There is also a question mark over the validity of the Lord Chancellor’s guidance following the recent Letts case. We will all have to watch to see whether further guidance is released.
Irrespective of these difficulties, inquest funding through legal aid remains and it should, at the very least, be considered as an option with clients. Given the importance of inquests, it is crucial that individuals and their families have this option to seek state funding to assist them and enable their full engagement and participation so that they can better understand a loved one’s death.