‘False promises mean false economies’
Exceptional case funding was touted as a safety net which would protect vulnerable clients. What has emerged in practice is very different. Even the most disabled and disadvantaged are being refused help on the grounds that they can represent themselves, leading not only to injustice but also extra expense to the taxpayer, says Catherine Baksi
During the passage of what became the Legal Aid, Sentencing and Punishment of Offenders (LASPO) Act 2012, the government repeatedly described the exceptional case funding (ECF) scheme as a ‘safety net’. ECF, introduced LASPO s10 would, campaigners were reassured, protect vulnerable groups once they were out of scope, where denial of funding would risk breaching their human rights.
The then justice minister, Lord McNally, assured fellow peers during the bill’s second reading: ‘Although narrowing the scope of legal aid, we intend to provide a safety net.’ In the commons, another former legal aid minister, Jonathan Djanogly, said: ‘Exceptional funding arrangements will ensure that legal aid will be available where required.’ The scheme would provide ‘an essential safeguard for the protection of an individual’s fundamental right to access to justice.’
Two years on from the introduction of ECF in April 2013, a very different picture has emerged. The numbers applying, and being granted, ECF are far lower than what was predicted; it has been widely criticised; and the government seems to have backtracked on what role the scheme was intended to play all along.
The Ministry of Justice (MoJ) had anticipated that ECF would receive 5,000–7,000 applications during its first year. However, to the end of December 2014, there were 2,370 applications, of which 220 (9 per cent) were granted. The vast majority of those, 135, have been for inquests. During that period, 34 family and 37 immigration cases received exceptional funding.
Speaking in February 2014, when 31 (3 per cent) of the 1,030 applications made had been granted, justice minister Lord Faulks declared that despite the low numbers, the scheme was ‘working effectively’.
In a revealing remark, he said: ‘It is not about whether a case may be deserving, it has to fall specifically within the confines of the section,’ which makes it clear that ‘it is for exceptional cases.’
And in the final justice questions before the pre-election dissolution of parliament, legal aid minister Shailesh Vara echoed his comment: ‘As far as exceptional funding is concerned, the giveaway is in the title. The fund is meant to be exceptional.’ Some people have wrongly construed it as ‘a discretionary fund,’ which is not what was intended, he added. ‘By definition, exceptional means that there is not going to be a very generous distribution.’
As a result of the narrow way it has been operated, ECF has come in for stringent criticism from practitioners and others.
‘Caseworkers are told ECF should be allowed only in “rare cases” where there is “substantial” risk a claimant’s human rights will be breached. The threshold for such a breach is “very high”.’
The cross-party justice committee condemned the scheme; and the courts declared the Lord Chancellor’s guidance on its application ‘unlawful’. In December 2014, the Court of Appeal upheld the High Court’s determination that the exceptional funding guidance given to caseworkers considering applications was ‘unlawful’, because it was too restrictive and set the funding threshold too high.
In his judgment in the Gudanaviciene case (see May 2015 Legal Action 12), Lord Dyson said: ‘The fact that section 10 is headed “exceptional cases” and that it provides for an “exceptional case determination” says nothing about whether there are likely to be few or many such determinations. Exceptionality is not a test.’ Nothing in s10, he said, suggests that exceptional case determinations will only be made ‘rarely’.
However, many vulnerable people will never get as far as even making an application, unless they can find a lawyer to do it for them.
To qualify for exceptional funding, applicants must not only pass the legal aid means and merits tests, but also complete the 14-page CIV ECF 1 form to demonstrate they meet the exceptional funding criteria.
This includes explaining the importance of the issues at stake, the complexity of the facts, law and procedures involved, and showing how a failure to provide legal aid would breach the client’s article 6 or other convention rights, giving references to case law.
They are also asked how capable the client is at presenting their case effectively, considering their educational level, relevant disabilities, their capacity and whether a litigation friend could present the case for them.
Michael’s story
Michael came to the UK when he was nine to join his mother, who is a refugee and survivor of extreme domestic violence. Michael needs to give her regular care, as she suffers from frequent seizures as a result of head injuries.
When Michael was 17, he was convicted of robbing a small amount of money from another boy. It was his second robbery offence, and he was sentenced to 18 months in prison. When he completed his sentence, he was detained under Immigration Act powers while the Home Office sought to deport him.
His lawyer had carried out some work pro bono. However, the day before Michael’s deportation appeal hearing, the Home Office served a bundle of 210 pages of further evidence – which meant it was not financially viable for his lawyer to continue to work for free. She arranged for Michael’s hearing to be adjourned, and applied for ECF, which was refused. The refusal is now the subject of an ongoing judicial review. The lawyer has 10 lever arch files of documents on this case in her office.
The Ministry of Justice is maintaining that Michael, who has one GCSE and no work experience, would be able to successfully:
•analyse items of expert evidence, such as police reports, and establish their validity;
•obtain relevant reports from the prison and probation service and cross-check police evidence against them;
•cross-examine two police officers, and his own mother, who has been recognised as a vulnerable witness.
While this challenge to refusal of ECF goes on, Michael remains in detention. He has been held in prison under Immigration Act powers for over 20 months, and is currently in a prison where he and his fellow prisoners are locked in their cells 23 hours a day. His detention has come not just at considerable personal cost to himself and his mother, but also financial cost to the state.
Case study from Bail for Immigration Detainees
Filling in the form is one of the biggest holes in the safety net. As Roopa Tanna, solicitor at Islington Law Centre who represented one of the applicants in the Gudanaviciene case, explains, it takes lawyers ‘hours and hours’ to complete. And those are hours for which lawyers are not paid, which means they are reluctant to make applications, particularly given the high likelihood the application will be refused.
Lawyers say the form is complicated even for them, and well beyond the capabilities of most ordinary people. Yet the MoJ’s website says the scheme can be accessed directly by litigants and encourages them to complete the form even if they do not have a solicitor.
Any client successfully completing the form might then find themselves in a catch-22 situation. David Emmerson, partner at TV Edwards and co-chair of Resolution’s legal aid committee, told the justice committee that ‘in informal discussions’ with the Legal Aid Agency (LAA), ‘they have almost agreed that, if a litigant in person is able to complete that form, they are almost able to show that they are able to represent themselves, so it is self-defeating’.
Despite being declared unlawful, the guidance, issued by the Lord Chancellor to LAA caseworkers determining applications, has yet to be updated.
And that document clearly demonstrates the government’s intention. Caseworkers are told that funding should be allowed only in ‘rare cases’ where there is ‘substantial’ risk that the claimant’s human rights will be breached. It states that the threshold for such a breach is ‘very high’ and will only be passed in cases where withholding legal aid would make the assertion of the claim ‘practically impossible or lead to an obvious unfairness in the proceedings’.
A further concern over ECF, identified by the justice committee, is the poor quality of decision-making by LAA staff who lack legal knowledge.
Catherine Evans, of the Southwark Law Centre, told the committee that the LAA showed ‘poor’ and ‘inconsistent’ decision-making and ‘failed to give paramount importance to access to justice’.
In its report, published in March, the justice committee concluded that ‘parliament intended the exceptional cases funding scheme to act as a safety net, protecting access to justice for the most vulnerable.’ However, its damning conclusion was that it had ‘not done the job parliament intended’ and that the ‘wrongful refusal’ of applications may have resulted in ‘miscarriages of justice’.
The committee voiced ‘concern’ at some of the cases where funding had been refused. These included:
•an illiterate woman with learning, hearing and speech difficulties, facing an application which would determine her contact with her children;
•parents with learning difficulties who wished to contest their child’s adoption but were £35 a month over the eligible financial limit;
•a destitute blind man with such profound learning difficulties he lacked litigation capacity.
Adeline Trude, research and policy manager for Bail for Immigration Detainees (see box), branded the scheme ‘inaccessible and unfit for purpose’.
As a result many clients are falling by the wayside, including those with domestic violence and other family cases, deportation and refugee family reunion matters.
Richard Miller, head of legal aid at the Law Society, points out the false economy of some of the refusals of funding. For example, failure to fund women seeking pension-sharing orders means potentially thousands of pounds of extra public money spent supporting the women through their retirement; while, not funding cases for those with housing benefit problems leads to costly possession proceedings.
A spokesman for the MoJ said he was unable to comment due to the pre-election purdah. However, Andy Slaughter, Labour justice spokesman, promised that, if elected, his party will ‘review the funding for exceptional cases and act to put into place a system that stops punishing the most vulnerable’.
Since Gudanaviciene, the number of cases funded has risen slightly. Excluding inquests, cases already in scope, withdrawn applications and applications were no decision had been made, the percentage of applications granted rose from 2.6 per cent to 14.7 per cent.
In the last quarter for which figures are available – October to December 2014 – 70 (25 per cent) of the 280 applications made were granted. Of those, 35 concerned inquests, 15 immigration, 13 family and two welfare benefits.
Despite the slight upturn in grants, Elspeth Thomson, Resolution legal aid committee co-chair, says the statistics say it all: ‘In practice, only a tiny handful of cases are being funded.’
She adds: ‘The holes in the exceptional funding safety net are still allowing too many vulnerable people to slip through.’
Richard Miller calls on the next government to deliver what parliament intended all along: protection for the victims of domestic violence, protection of the rights of children, and a safety net for deserving cases.