Since its inception, the exceptional case funding (ECF) scheme has been the cause of concern and frustration to individuals and legal aid providers alike. Although changes introduced since lockdown have improved the application process, more change is needed, particularly in light of the challenges presented by the COVID-19 pandemic.

The ECF scheme was conceived as a human rights ‘safety net’ (Hansard HL Debates vol 732 col 821, 21 November 2011), introduced in response to concerns about the removal of vast swathes of civil law from legal aid by the Legal Aid, Sentencing and Punishment of Offenders Act 2012. Problems with the scheme were well documented from the outset, and the Public Law Project (PLP) had particular concerns about the accessibility of ECF to individuals applying without the help of a legal aid provider. For example, in the first year of the scheme, only one direct client applicant was successful in applying for ECF (IS v Director of Legal Aid Casework and Lord Chancellor [2015] EWHC 1965 (Admin) at para 46).

Our challenge to the operation of the scheme (Director of Legal Aid Casework and Lord Chancellor v IS [2016] EWCA Civ 464) was ultimately dismissed by the Court of Appeal on the basis that the scheme was not so inherently unfair as to be unlawful. However, the court did accept that there were problems with the scheme and that it was ‘heavily dependent on the participation of providers’ (para 55) given the difficulties for lay people applying as direct client applicants.

One difficulty of particular concern was the fact that direct clients would only be given an ‘indication’ that they would be granted ECF. The client would then have to find a legal aid provider with capacity to take on the case, and the provider would have to reapply. This created further delay and disincentivised providers from taking on cases in which a positive indication had been given. In PLP research published in January 2020, over half of providers surveyed (53.75 per cent) reported that they did not take on clients who had applied for ECF directly from the Legal Aid Agency (LAA) and who had had their eligibility for ECF confirmed (Joe Tomlinson and Emma Marshall, Improving exceptional case funding: providers’ perspectives, page 15).

On 1 April 2020, the LAA issued its updated Exceptional cases funding – provider pack (which is dated March 2020), setting out a new, simplified process for direct client applicants. The updated provider pack now states that when a legal aid provider is instructed by a successful direct client applicant, they simply need to review the information in the client’s application and then complete the provider details and certification on the relevant form. The provider should then email the completed forms to the ECF team at the LAA at contactECC@justice.gov.uk to confirm that the provider is acting for the client in the matter. Further welcome news is that, for licensed work, the provider does not need to submit any information on the client and cost management system (CCMS) but can send the relevant pre-CCMS forms to the same email address.

However, providers should be aware that direct clients may not have been able to fully complete the merits sections of forms and so should review these with extra care. The guidance in the provider pack states that it will also be ‘particularly important to describe any change of circumstances or new facts and to identify any additional documents that are being provided to us’ (page 9).

While this change is to be welcomed, further changes to the scheme are still needed: the urgent application timeframe of 10 working days is inadequate, and the timeliness of decision-making in general is concerning. PLP also has concerns that the ECF scheme is not providing a legal aid safety net during the COVID-19 pandemic. We have called on the lord chancellor to give legal aid providers delegated powers to grant ECF in out-of-scope cases for the duration of the current public health crisis, and to amend the ECF guidance to reflect the additional barriers faced by litigants in person attempting to navigate remote hearings.