Thinking outside the box with exceptional case funding
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Marc Bloomfield
Exceptional case funding (ECF) is meant to be a safety net for individuals who need representation in any area of law that is out of scope for legal aid. However, nearly all of the ECF applications that have been made relate to just a handful of areas of law. Is there untapped potential to apply for ECF in other areas?
When the Legal Aid, Sentencing and Punishment of Offenders Act 2012 (LASPO) was introduced, ECF was intended to act as a safety net for areas of law that were taken out of scope. Of the ECF applications received between April and June 2020, immigration (76 per cent) and family (11 per cent) were the most requested areas of law.1Legal aid statistics quarterly, England and Wales April to June 2020, Ministry of Justice, 24 September 2020, page 16. These two areas have, together with inquests, dominated since LASPO s10 came into force over seven-and-a-half years ago.
Under s10, ECF is available where a denial of legal aid would risk a breach of an individual’s ECHR (European Convention on Human Rights) rights under the Human Rights Act 1998 or retained EU law, provided that the individual also satisfies the ordinary eligibility criteria for legal aid. In most cases where ECF is granted, it is to avoid a breach of the right to a fair hearing as protected by ECHR article 6 in cases concerning civil rights, and the procedural aspect of article 8 in other cases.
The Legal Aid Agency’s (LAA’s) ECF application form, which broadly reflects the Lord chancellor’s exceptional funding guidance, asks applicants to address three points:
the importance of the issues at stake;
the complexity of procedure, area of law and evidence; and
the capability of the applicant to represent themselves.
Public Law Project (PLP) has a range of guides to support people to apply for the ‘traditional’ areas of law for which people apply for ECF: immigration; family; housing and welfare benefits. We also have a guide to assist non-lawyers to apply.
PLP is exploring where ECF could be used to secure access to justice in other areas of law. Over the past year, we have been supporting education law legal aid providers to apply for ECF for representation in the First-tier Tribunal (Special Educational Needs and Disability) (SEND Tribunal). Even before LASPO, legal aid for representation in the SEND Tribunal was out of scope. Legal help under the education law legal aid contract covers all the stages up to the SEND Tribunal door but it does not fund advocacy or the attendance of expert witnesses. This has led to an inequality of arms, with local authorities often being represented by counsel, whereas families that cannot afford legal representation have needed to rely on pro bono assistance or to fend for themselves.
Until PLP started working on this issue, ECF for representation in the SEND Tribunal had not been properly explored. We understand that there had only ever been five applications for SEND Tribunal ECF, none of which had been successful. PLP has now supported three education law legal aid providers – Coram Children’s Legal Centre, GT Stewart Solicitors and Simpson Millar – to successfully apply for SEND Tribunal ECF. In fact, there has been a 100 per cent success rate to date. We are continuing to work closely with education law legal aid providers to ensure that applications for SEND Tribunal ECF become standard practice in suitable cases.
Why have applications for SEND Tribunal ECF proven to be so successful? First, the issues at stake are obviously important. A SEND Tribunal hearing often concerns an appeal related to an education, health and care plan or a claim of disability discrimination. As such, it concerns essential provision costing potentially hundreds of thousands of pounds or establishing whether a disabled child or young person has been unlawfully discriminated against. Second, the issues are complex. The Children and Families Act 2014 introduced new duties on local authorities and since the introduction of the National Trial2See SEND Tribunal: single route of redress national trial – guidance for local authorities, health commissioners, parents and young people, Department for Education/HM Courts & Tribunals Service, March 2018. FAQs about the National Trial can be found on the Independent Provider of Special Education Advice’s website. in April 2018, the SEND Tribunal has had the power to make recommendations in relation to health and social care provision. Bundles for hearings in the SEND Tribunal can involve hundreds of pages of expert evidence and may involve expert witnesses who need to be cross-examined. Third, young people or parents bringing the case may have barriers to effectively representing themselves, including too close an emotional connection to the material, a disability or a language barrier.
There are undoubtedly other areas of law with untapped potential to secure ECF. For example, PLP is currently looking into the availability of ECF for individuals to defend themselves in defamation proceedings. If you have ideas for other areas of law where securing ECF might be possible, please feel free to reach out to PLP by emailing: ECF@publiclawproject.org.uk, and we will be happy to discuss further.
 
1     Legal aid statistics quarterly, England and Wales April to June 2020, Ministry of Justice, 24 September 2020, page 16. »
2     See SEND Tribunal: single route of redress national trial – guidance for local authorities, health commissioners, parents and young people, Department for Education/HM Courts & Tribunals Service, March 2018. FAQs about the National Trial can be found on the Independent Provider of Special Education Advice’s website»

About the author(s)

Description: Ollie Persey - author
Ollie Persey is a public law barrister at Garden Court Chambers. He is a co-chair of Young Legal Aid Lawyers.