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The exceptional case funding (ECF) scheme has long had issues with accessibility and truly acting as a safety net for the most vulnerable to access legal aid for areas of law that are out of scope as a result of the Legal Aid, Sentencing and Punishment of Offenders Act 2012. But the 2019 Legal Support Action Plan by the Ministry of Justice (MoJ),
Legal support: the way ahead (CP 40), pledged to make ECF as accessible as possible and to enable people to access funding when they need it.
Four years on, how effective has the plan been? And which barriers still remain?
Accessibility
One notable change to ECF has been the introduction of a new version (8) of
application form CIV ECF1, dated June 2022, in response to calls to make it more accessible. In the 2021/22 financial year, of the 3,724 ECF applications, only 545 were made by individuals, suggesting the application process was not accessible to applicants without specialist support.
1Legal aid statistics tables – July to September 2022, MoJ/LAA, 15 December 2022, table 8.1.The new, simpler application form aims to address this imbalance. It now asks the applicant three straightforward questions concerning the background of their case, why the issues in their case are important, and how capable the applicant is of putting forward their case without a solicitor. This is an improvement: previously an individual would have been confronted with two pages of complex legal questions that they needed to understand and apply to their situation and need for legal advice.
Aside from the form itself, there are limited instructions online to explain the scheme. Individuals are instructed to complete ‘the simple checklist’ (on page 11 of the CIV ECF1 form), which is a far-from-simple grid in which individuals must identify and complete the appropriate (and complicated) means forms and argue the merits of their case to the Legal Aid Agency (LAA). This is concerning from an access to justice perspective, will inevitably lead to confusion and mistakes, and will increase the administrative burden on the LAA. It is unclear whether new guidance will be published for individuals attempting to apply for ECF, but we would urge the LAA to produce clearer guidance to lower the risk of it being a barrier to justice.
ECF in practice
Many complex applications for ECF require a lawyer to assist if they are to succeed, and providers are not paid for unsuccessful applications. A convoluted process set out on the previous application form whereby providers could get ECF to prepare an ECF application appears to have been shelved as unworkable. Providers have called for clearer eligibility guidance, simpler evidence requirements, and improved timeliness of LAA decision-making.
2Joe Tomlinson and Emma Marshall, Improving exceptional case funding: providers’ perspectives, PLP research paper, January 2020. To ensure access to funding for applicants, providers must be financially supported. In a system that is financially unsustainable for many, and at capacity for others, it is unsurprising that some are unwilling to take on additional risk in the form of ECF applications.
ECF can be an unnecessary barrier to accessing vital legal support where a risk of a fundamental human rights breach is at stake. In the immigration sector, where ECF can be said to be ‘working’, 87 per cent of applications were granted in 2021/22.
3Legal aid statistics tables – July to September 2022, ibid, table 8.2. Straightforward applications have such a high chance of success that those cases should be brought back in scope. This would free up resources for more complex and urgent cases.
What next?
There has been no discernible increase in the number of ECF applications in the three-month period since the introduction of the new form.
4Legal aid statistics tables – July to September 2022, ibid, table 8.1. Until the more fundamental issues around sustainability of legal aid are addressed, ECF will continue to be underused.
Lawyers must be remunerated in line with inflation. Improvements to the legal aid scheme, such as connecting high peer review scores to lighter-touch compliance activity or higher remuneration, could incentivise providers to continue to take on the work. Limited changes, such as the recently announced proposals to reduce the escape threshold for immigration/asylum legal help and controlled legal representation to twice the fixed fee,
5Government response to Immigration legal aid: a consultation on new fees for new services, MoJ, 20 December 2022. do not go far enough. Before any substantial reforms are considered, an immediate inflationary increase is required across the board to ensure short-term sustainability. Superficial changes are clearly not sufficient when systemic overhaul is needed.
The MoJ's review of civil legal aid sustainability will not implement any changes to the ECF scheme or wider legal aid sector until 2024, so we must wait to see what the future holds, if anything, for a once proud legal aid system on life support.