Authors:Jeremy Ogilvie-Harris
Last updated:2023-10-26
Tips on getting exceptional case funding for welfare benefits appeals
Marc Bloomfield
Description: Social security
Jeremy Ogilvie-Harris gives real-world examples of exceptional case funding for appeals in both the First-tier and Upper Tribunals.
The purpose of this article is to share Hackney Community Law Centre’s (HCLC’s) experience of applying for exceptional case funding (ECF) for welfare benefits appeals in the First-tier Tribunal (FtT) and Upper Tribunal (UT). Below I present a selection of examples where ECF was granted, my aim being to encourage benefits caseworkers to apply for it in their own cases. For those who have not done so, I would recommend first reading the Public Law Project’s (PLP’s) guide, How to get legal aid ECF in welfare benefits cases (ECF Short Guide 2, 5 April 2018), which is available for free on its website.
There are several issues with the current legal aid scheme with regards to benefits. First, most welfare benefits work and proceedings before the FtT are excluded from the scope of legal aid (Legal Aid, Sentencing and Punishment of Offenders Act 2012 (LASPO) Sch 1 Part 2 para 15 and Part 3).
Second, the legal help funding available for clients applying to the UT for permission to appeal a FtT decision will only provide a fixed fee of £208 (see LASPO Sch 1 Part 1 para 8(1) and Civil Legal Aid (Remuneration) Regulations 2013 SI No 422 (as amended) Sch 1 Part 1 table 7). Practically, this only covers about four-and-a-half hours’ work, which only allows the giving of advice and assistance to draft a basic Form UT1. Most UT appeals will require between 20 and 60 hours of work.
Third, legal help will not provide funding for counsel’s opinion and representation, either by a representative or counsel, in the FtT or UT. While a disbursement for counsel’s opinion can, in some circumstances, be justified, if the Legal Aid Agency (LAA) has not expressly permitted this in the ECF grant, the costs could be at risk.
In making an ECF application, a caseworker will have to explain how important the issue is to their client, how complex the proceedings are and how capable the client is of representing the case effectively. Each element of the test takes its colour from the other, and, generally speaking, there are two types of benefits cases where there will be a good argument for legal aid funding:
1cases involving complex legal points; and
2cases where the appellant is unable, for a variety of reasons, to effectively put their case and respond to the benefit authority’s case.
Complex points of law in FtT appeals
The most common ECF is for a case with a complex point of law, such as where the FtT is invited to disapply secondary legislation under Human Rights Act 1998 s6(2), as in RR v Secretary of State for Work and Pensions [2019] UKSC 52; May 2020 Legal Action 25.
We recently obtained a full representation for a FtT appeal concerning whether the past presence test for personal independence payment (PIP) discriminated against the appellant on the basis of her status as a victim of domestic violence. We argued that the case was important because it concerned an interference with the appellant’s rights under the European Convention on Human Rights. Further, we argued that the appellant needed assistance with complex legal arguments, including whether the FtT has the jurisdiction to disapply secondary legislation, whether the appellant’s human rights were breached, and what the remedy should be. We explained the complexity of the legal arguments and that a lay person would not be able to research and effectively argue these points, let alone a person with severe mental health conditions.
We were granted legal help ECF and a full representation certificate permitting us to seek counsel’s opinion. The legal help ECF application was made post-pandemic and took 65 days to be processed. The full representation application took six days to be processed.
Complex FtT appeals
The complexity of proceedings and the capability of the individual to represent themselves are interlinked. This means that there may be ‘ordinary’ benefits appeals that warrant an ECF application.
HCLC obtained ECF legal help for a disability living allowance (DLA) FtT appeal for a child. The appellant had been diagnosed with autism but the Department for Work and Pensions (DWP) did not accept that she had a ‘severe mental impairment’. Her mother (the appointee) had provided extensive evidence to the DWP, and undertaken the initial claim and mandatory reconsideration process while unrepresented.
We applied for legal help to draft written submissions to the FtT arguing as follows. The appeal was important to the appellant because DLA exists to cover the extra costs of disability (which is parliament’s way of mitigating a disadvantage), and the mobility component would entitle them to the Motability Scheme, without which the appellant may not be able to travel safely from home to school or hospital appointments. As the Supreme Court held in R (Unison) v Lord Chancellor [2017] UKSC 51, if, for important rights, access to justice is not provided, the laws legislated for by parliament would be liable to become a dead letter. Further, DLA is notoriously complex as the legislation is drafted in relatively broad terms that have been the subject of numerous decisions of the social security commissioners and the higher courts (a point that was acknowledged by parliament and the government when replacing DLA with PIP).
We cited the primary and secondary legislation, case law and DWP guidance that was material to the appeal, and indicated that it was unlikely that an individual without legal training would be able to research these. Further, we argued that the appointee would benefit from assistance with applying the law to the medical evidence. The LAA granted legal help ECF after 24 days of processing.
Initially, it did not backdate the date of grant of ECF, meaning that work carried out in the meantime, including the application itself, would not have been covered by the ECF. We sought a review on the basis that the LAA’s guidance, Exceptional cases funding – provider pack (April 2020) states that the effective date of legal aid for ECF will be the ‘date the client signs the legal help form’ provided the application is made within two months of that date (page 6). The ECF was backdated to the date of signature. We drafted detailed submissions for the appellant and the FtT allowed the appeal on the papers alone. It has been reported that other firms have also had success in obtaining ECF in similar circumstances (James Andrews, ‘Disabled mum left in tears after DWP wrongly stopped all her benefits’, Mirror, 9 October 2019).
Personal circumstances
It is also possible to obtain ECF legal help for cases where the proceedings may not be particularly complex but the appellant is unable to represent themselves for other reasons, such as limited English skills or learning disabilities.
In one case, the appellant had claimed PIP because of complex mental health needs. He had been represented by HCLC under legal help to appeal a FtT decision not to grant PIP to the UT. This had been successful and the appeal was remitted to the FtT.
We applied for ECF, arguing as follows. The proceedings were important because the appellant needed funding for taxi cabs (he could not use public transport) and for a carer, and his right to PIP, granted by parliament, would be denied. The appellant had phobias, which meant that he could not engage with authorities and was scared to open letters, making it difficult for him to effectively manage the appeal proceedings. Further, we cited the relevant legislation and case law, explaining that it was unlikely that he could research these and apply them to the complex facts in his appeal. Finally, the fact that the UT had overturned a previous FtT decision showed the importance of the appellant being represented in the appeal. Legal help ECF was granted 21 days after the application was made, and following HCLC’s written representations, his PIP appeal was successful.
In another case, we obtained ECF for an employment and support allowance (ESA) appeal where the appellant spoke no English and had mental health conditions. She had previously relied on the support of a lay organisation and family members but this representation had been ineffective. We argued that there was a great deal of legislation and case law relevant to an ESA appeal (eg, about Employment and Support Allowance Regulations 2008 SI No 794 reg 35(2)(b)). We highlighted all the previous mistakes made (eg, wrong forms completed, non-compliance with directions) to show that the appellant required assistance. This case was post-pandemic and it took 44 days for the LAA to process the application (double the target of 21 days). The appellant’s appeal was successful.
Permission to appeal to the UT
It is also possible to obtain legal help ECF for applications to the FtT for permission to appeal to the UT (ie, not the Form UT1, which is covered by LASPO). These ECF applications are commonly granted and given the fixed fee that applies for the UT1 stage, we would recommend that representatives apply for ECF at this stage.
In one case, we obtained ECF for legal help for an application to the FtT for permission to appeal to the UT. The appellant’s FtT appeal to be placed in the ESA support group had been disallowed. We argued that the appeal was important because there was a risk to his health if he were required to undertake work-related activities. Because the appellant spoke little English, and an application for permission to appeal involved an understanding of complex case law, the appellant would be unable to effectively represent himself. Further, it would be more cost-effective to grant ECF at this earlier stage because legal help would be available anyway at the UT1 stage, but, if ECF were not granted, the FtT and UT would incur unnecessary costs. ECF was granted 11 days after the application. The FtT set aside the decision and the appellant succeeded in the fresh FtT hearing.
Complex points of law in UT appeals
Full representation for UT appeals is commonly granted and the arguments in the ECF application will be similar to one for an FtT appeal with a complex point of law. Most UT appeals engage complex legal principles and an individual will likely need representation. We have recently obtained full representation in a DLA UT appeal about whether a care plan under Children and Families Act 2014 s100 can amount to supervision, and a housing benefit UT appeal concerning the interpretation of the foster carer exemption to the bedroom tax and the Data Protection Act 2018. However, if the merits are unclear, you can apply for investigative representation to obtain counsel’s opinion on the merits. Investigative representation will also allow you to take precautionary steps to protect a client’s position, for instance, submitting a Form UT1 to comply with the deadline to appeal.
Getting the application right
For practical guidance on making an application for an ECF certificate on CCMS (the client and cost management system), I would advise watching the LAA's guidance videos, which are online for free. Mistakes in drafting a CCMS application can lead to a lot of extra administrative work down the line, for instance, completely reworking the application or being granted the wrong limitation scopes, so it is important to get it right the first time.