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Legal aid safety net does not work, rules UK high court Legal aid safety net does not work, rules UK high court
(8 days later)
The safety net to ensure that vulnerable claimants are provided with legal aid and access to justice does not work, the high court has ruled.The safety net to ensure that vulnerable claimants are provided with legal aid and access to justice does not work, the high court has ruled.
The Legal Aid Agency’s exceptional case funding scheme is “not in accordance with the law” and must be altered, Mr Justice Collins declared.The Legal Aid Agency’s exceptional case funding scheme is “not in accordance with the law” and must be altered, Mr Justice Collins declared.
Related: Legal aid fees to be cut by 8.75%, confirms Ministry of JusticeRelated: Legal aid fees to be cut by 8.75%, confirms Ministry of Justice
His ruling, in a test case originally brought on behalf of a blind man who has cognitive impairments, follows widespread complaints from lawyers about difficulties in operating the last-resort funding mechanism.His ruling, in a test case originally brought on behalf of a blind man who has cognitive impairments, follows widespread complaints from lawyers about difficulties in operating the last-resort funding mechanism.
The Ministry of Justice said it would appeal against the decision. Labour’s justice spokesman, Andy Slaughter, called on the justice secretary, Michael Gove, to conduct an emergency review of the legislation.The Ministry of Justice said it would appeal against the decision. Labour’s justice spokesman, Andy Slaughter, called on the justice secretary, Michael Gove, to conduct an emergency review of the legislation.
“I am satisfied,” Collins said in his ruling, “that the scheme as operated is not providing the safety net promised by ministers and is not in accordance with section 10 [of the Legal Aid, Sentencing and Punishment of Offenders Act 2012] in that it does not ensure the applicants’ human rights are not breached or are not likely to be breached.“I am satisfied,” Collins said in his ruling, “that the scheme as operated is not providing the safety net promised by ministers and is not in accordance with section 10 [of the Legal Aid, Sentencing and Punishment of Offenders Act 2012] in that it does not ensure the applicants’ human rights are not breached or are not likely to be breached.
“A particular adverse effect of the LASPO reforms has been on family cases, and the increase in litigants who should have been granted legal assistance but have to appear in person.”“A particular adverse effect of the LASPO reforms has been on family cases, and the increase in litigants who should have been granted legal assistance but have to appear in person.”
The LAA is an executive agency of the Ministry of Justice. Exceptional funding was intended to support people whose entitlements under the European convention of human rights were at risk of being breached if they were not given legal aid.The LAA is an executive agency of the Ministry of Justice. Exceptional funding was intended to support people whose entitlements under the European convention of human rights were at risk of being breached if they were not given legal aid.
The judge granted the LAA and the lord chancellor, also currently Michael Gove, permission to appeal against his ruling because of its widespread importance. Government lawyers gave the judge assurances that his ruling would be put into effect pending any appeal.The judge granted the LAA and the lord chancellor, also currently Michael Gove, permission to appeal against his ruling because of its widespread importance. Government lawyers gave the judge assurances that his ruling would be put into effect pending any appeal.
Application forms for exceptional funding for legal aid were “far too complex” for people having to fill them in without the help of lawyers. The judge called for more user-friendly forms to be provided.Application forms for exceptional funding for legal aid were “far too complex” for people having to fill them in without the help of lawyers. The judge called for more user-friendly forms to be provided.
Consideration should also be given to enabling lawyers to do work to see whether a claimant had a case which should be granted legal assistance, the judge said. The “merits test” applicants had to pass before being granted legal assistance was also flawed.Consideration should also be given to enabling lawyers to do work to see whether a claimant had a case which should be granted legal assistance, the judge said. The “merits test” applicants had to pass before being granted legal assistance was also flawed.
The judge added: “The rigidity of the merits test and the manner in which it is applied are in my judgment wholly unsatisfactory. They are not reasonable. 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.”The judge added: “The rigidity of the merits test and the manner in which it is applied are in my judgment wholly unsatisfactory. They are not reasonable. 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.”
The case was brought by the Official Solicitor of England and Wales on behalf of a blind Nigerian national referred to as IS, who has lived in the UK for over 13 years and suffers from profound cognitive impairment. IS was seeking funding to enable him to apply to the Home Office to clarify his position in the UK as an immigrant but was refused exceptional funding.The case was brought by the Official Solicitor of England and Wales on behalf of a blind Nigerian national referred to as IS, who has lived in the UK for over 13 years and suffers from profound cognitive impairment. IS was seeking funding to enable him to apply to the Home Office to clarify his position in the UK as an immigrant but was refused exceptional funding.
Related: Ministry of Justice exceptional funding is for defending basic rights | Letters
He later won his case, but the Official Solicitor decided that, even though his individual challenge had become academic, the legal action should be continued because of concerns that the scheme was failing properly to deal with other claims from both children and adults who lacked capacity.He later won his case, but the Official Solicitor decided that, even though his individual challenge had become academic, the legal action should be continued because of concerns that the scheme was failing properly to deal with other claims from both children and adults who lacked capacity.
The judge said in his ruling: “The importance of the issues raised in this claim has justified its continuation in what in effect amounts to a test case.”The judge said in his ruling: “The importance of the issues raised in this claim has justified its continuation in what in effect amounts to a test case.”
The Official Solicitor was represented by the legal charity Public Law Project (PLP). Its director, Jo Hickman, welcomed the ruling, saying: “PLP has long been concerned about the practical operation of the ECF scheme. This welcome judgment will help to protect the interests of the many children, patients and other vulnerable adults who would otherwise be unable to achieve justice.”The Official Solicitor was represented by the legal charity Public Law Project (PLP). Its director, Jo Hickman, welcomed the ruling, saying: “PLP has long been concerned about the practical operation of the ECF scheme. This welcome judgment will help to protect the interests of the many children, patients and other vulnerable adults who would otherwise be unable to achieve justice.”