Merits test for legal aid eligibility for Exceptional Case Funding too restrictive


Re: IS v Director of Legal Aid [2015] EWHC 1965 (Admin)

Six claims heard together challenged the operation of the Exceptional Case Funding (ECF) scheme, alleging that it frustrated the purpose of the LAPSO Act 2012 and violated the claimants’ ECHR, arts 6 and 8 rights. The Court accepted that this was essentially a test case as the claimants’ present situations had been remedied, but justified the continuation as issues of public importance were raised.

The Court was highly critical of the complex legal aid application forms, which were targeted at legal service providers rather than lay persons. Those applying for legal aid were unlikely to be able to afford to pay lawyers, and there was a disincentive for solicitors to take on such clients, as they would only receive funding from the LAA if applications were successful.

The Court ultimately held that the scheme was too restrictive. It failed to provide for Legal Help funding, creating a real risk that no legal assistance would be obtained by an individual, leading to a violation of their Convention and/or EU rights. The Court also held that the inability to obtain emergency certification was unreasonable, as was the absence of a process to appeal ECF refusals, other than judicial review. The merits test was too rigid, with applicants only succeeding if there was at least an even chance of success. This was unreasonable. The failure of the scheme to provide the promised safety net meant that a serious risk of human rights violations existed.

Ben Silverstone, Chris Buttler, Phillippa Kaufmann QC and Richard Hermer QC were involved in this case.