A scheme set up to provides legal aid funding in ‘exceptional’ circumstances is unlawful, the High Court has declared.
The ‘Exceptional Case Funding Scheme’ is defined by the Legal Aid, Sentencing and Punishment of Offenders Act (LASPO),the same act which removed the provision of legal aid from most family law cases. Section 10 states that legal aid may be payable in some cases when:
“(a)..it is necessary to make the services available to the individual…because failure to do so would be a breach of—
(i)the individual’s Convention rights (within the meaning of the Human Rights Act 1998), or
(ii)any rights of the individual to the provision of legal services that are enforceable EU rights…”
The scheme is administered by the Legal Aid Agency, a branch of the Ministry of Justice.
But in a High Court judgement Mr Justice Collins has strongly criticised the operation of the scheme.
Re IS concerned a profoundly disabled man from Nigeria who has lived in Britain for 13 years. He was blind and had significant mental impairments. But despite these disabilities, he was refused exceptional case funding when his representatives sought to apply to the Home Office to “recognise his position in this country”.
The Legal Aid Agency insisted that IS’s rights under Article 8 of the European Convention on Human Rights were not affected by his immigration status. But this stance was rejected by the Court of Appeal, who declared it mistaken.
The Official Solicitor of England and Wales then brought a test case in order to clearly establish the legal situation for other vulnerable litigants.
The Official Solicitor is a representative of Supreme Court with a remit to protect the interests of children and the disabled.
Mr Justice Collins declared:
“There would be something seriously wrong with a system applied under s10(3) of LASPO when an extremely vulnerable individual who could not afford to pay for assistance and who could not achieve an effective exercise of his Article 8 rights was deprived of such assistance.”“
In a lengthy and detailed judgement, he called for changes to the Exceptional Case Funding Scheme, highlighting the complexity of its application forms and the decision-making procedures applied.
Mr Justice Collins concluded:
“I am satisfied that the scheme as operated is not providing the safety net promised by Ministers and is not in accordance with s.10 [of LASPO] in that it does not ensure that applicants’ human rights are not breached or are not likely to be breached.”
The judgement is here.