Mr Justice Collins says Legal Aid Agency's Exceptional Case Funding scheme is unlawful and causing suffering in a way that Parliament cannot have intended
In a judgment in a test case handed down today, the High Court has found that the Legal Aid Agency's current operation of the Exceptional Case Funding (ECF) scheme is unlawful.
Image credit: WikipediaEIN members can read the judgment in IS v The Director of Legal Aid Casework & Anor [2015] EWHC 1965 (Admin) here.
The Public Law Project (PLP), who represented the claimant, says the judgment will have profound implications for access to justice.
The case was brought by the Official Solicitor of England and Wales on behalf of a claimant known as IS, a Nigerian national who has lived in the UK for over 13 years and who is blind and has profound cognitive impairments. IS was refused ECF.
The PLP says an earlier judgment had already established that IS was entitled to ECF and that the restrictive ECF guidance published by the then Lord Chancellor was incorrect and unlawful. The Official Solicitor then pursued a wider public interest claim out of general concern for other vulnerable litigants.
Today's judgment found that the ECF scheme is deficient in various respects, including the complexity of the application procedure and the nature of the Legal Aid Agency's decision-making, and that it is failing to provide the safety net that was promised by Ministers.
"Those who are unable to pay for legal assistance are suffering in a way that Parliament cannot have intended", Mr Justice Collins said in the judgment.
"I think that there must be changes to the scheme," he continued. "The rigidity of the merits test and the manner in which it is applied are in my judgment wholly unsatisfactory. They are not reasonable."
"As will be clear, 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 in that it does not ensure that applicants' human rights are not breached or are not likely to be breached. 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."
PLP's director, Jo Hickman, said: "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."