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Legal Aid Exceptional Funding Scheme ruled unlawful in High Court
Mr Justice Collins has ruled the current exceptional funding for legal aid unlawful, in a decision of the High Court.
Noting that “The rigidity of the merits test and the manner in which it is applied are in my judgment wholly unsatisfactory. They are not reasonable.” (para.106), Mr Collins goes onto state that “I am satisfied that the scheme as operated is not providing the safety net promised by Ministers and is not in accordance with s.10 [LASPO] in that it does not ensure that applicants’ human rights are not breached or are not likely to be breached. There is a further defect in the failure to have any right of appeal to a judicial body where an individual who lacks capacity will otherwise be unable to access a court or tribunal.” (para.107)
Mr Collins finds that “The prescribed forms are said to be far too complicated to be able to be completed by lay persons and there is little chance that an individual will be able to find a provider who is prepared to do the necessary work to make an ECF application. Even experienced solicitors have difficulty with the forms. “ (para.42) and also goes onto say “It is instructive to follow the evidence of an individual who has tried to apply in person. The successful applicant is known as JLE. She describes her experience of trying to get legal assistance as a total nightmare. “ (para.62)
On the merits test, Mr Collins says “There are in my view two difficulties in the way the merits test has been applied. First, the requirement that in all cases there must be a even or greater than even chance of success is unreasonable. Secondly, the manner in which the LAA has assessed the prospects of success has been erroneous. The whole point of representation is that it will produce the chance of success which without representation will not exist. If a case involves issues of fact which will depending on the court’s findings determine the outcome, it must be obvious that the ability to challenge apparently unfavourable material and to cross examine adverse witnesses effectively may turn the case in a party’s favour. Accordingly, what has to be assessed is not what the present material when untested may indicate but whether if competent cross examination or legal submissions are made the result may be favourable. It is not for the LAA to carry out the exercise which the court will carry out, in effect prejudging the very issue which will be determined by the court. “ (para.96)
Guardian reports that Gove and crew will be given permission to appeal but also that their lawyers have promised the Judge that his judgement will be put into effect pending any appeal.
Here’s the transcript of Mr Justice Collins’ judgment
New regs issued to amend merits test to reflect the High Court judgment pending outcome of government’s appeal to Court of Appeal -
http://www.legislation.gov.uk/uksi/2015/1571/made
The explanatory memorandum to the regs says -
‘2.1 This instrument amends The Civil Legal Aid (Merits Criteria) Regulations 2013 (“the Merits Criteria Regulations”). The Merits Criteria Regulations relate to the merits criteria which the Director of Legal Aid Casework (“the Director”) at the Legal Aid Agency (LAA) must apply when determining whether an applicant qualifies for civil legal aid under Part 1 of the Legal Aid, Sentencing and Punishment of Offenders Act 2012 (“LASPO”).
2.2 On 15 July 2015 the High Court handed down its judgment in IS v The Director of Legal Aid Casework and the Lord Chancellor [2015] EWHC 1965 Admin (‘the IS case’). The Court made a declaration that the Merits
Criteria Regulations are unlawful in the respects and to the extent set out in the Court’s judgment. The court gave the Government permission to appeal. The purpose of this instrument is to amend the Merits Criteria Regulations to reflect the judgment pending the decision of the Court of Appeal.
2.3 The amendments made by this instrument will mean that, in cases where an application for full representation is subject to an assessment of its prospects of success, legal aid may now be provided for some cases assessed as having “borderline” or “poor” prospects of success. The Director will need to be satisfied
that it is necessary to determine (or in the case of a risk of a breach, appropriate to determine) that the prospects of success test is met to prevent a breach (or the risk of a breach), of the legal aid applicant’s rights under the European Convention on Human Rights or enforceable EU rights. ‘
LAA subsequently issued a press release re the new regs
The Legal Aid Agency has told representative bodies that with immediate effect, it will no longer fund applications for civil legal aid representation certificates with less than a 50%, or borderline, prospect of success.
https://legalaidhandbook.com/2016/06/17/as-you-were-merits-tests-back-to-50-or-above/
Yes, I saw this the other day and meant to post something about CoA overturning previous decision.
The Court of Appeal has given judgment in the case of Director of Legal Aid Casework and another v IS [2016] EWCA Civ 464, the Director’s appeal against the judgment of Collins J in the High Court that the exceptional funding regime was inherently unlawful.
Laws LJ gave the main judgment, with which Burnet LJ agreed. He said that there were clear flaws in the operation of the scheme which had resulted in unfairness in individual cases. But 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.
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 didn’t. Neither did he or Burnet LJ consider the merits test or the Lord Chancellor’s Guidance to be unlawful.
From Legal Aid Handbook Court of Appeal says exceptional funding regime is lawful
New from the Legal Aid Agency:
New approach to making decisions on prospects of success for ‘poor’ and ‘borderline’ cases
New regs out today -
The purpose of this instrument is to amend The Civil Legal Aid (Merits Criteria) Regulations 2013 (“the Merits Criteria Regulations”), which provide the merits criteria that the Legal Aid Agency (“LAA”) must apply when determining whether an applicant qualifies for civil legal aid.
The effect of the amendment is that in cases where an application for full legal representation is subject to an assessment of its prospects of success, a case must in general have 50% or higher prospects of success to receive legal aid.
In addition, the LAA must fund certain cases that are assessed to have prospects of success that are “borderline”2 or just below 50% (a 45% or more chance, but less than a 50% chance, defined as “marginal” prospects of success).
Civil Legal Aid (Merits Criteria) (Amendment) Regulations 2016
cue, in such cases, massive argument as to the prospects….... since what i think and what they think might well be wholly different….