R (Gudanaviciene & ors) v Director of Legal Aid Casework and The Lord Chancellor  EWHC 1840 (Admin), 13 June 2014
When the Legal Aid, Sentencing and Punishment of Offenders (LASPO) Bill was passing through Parliament the Government frequently emphasised that there would be a safety net provided with regard to those areas that were going out of scope for legal aid, namely ‘exceptional funding’ (EF).
Ultimately this was contained in LASPO Act 2012 section 10 which deals with cases that would otherwise be out of scope:
(3)…an exceptional case determination is a determination –
(a) that it is necessary to make the services available to the individual under this Part 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, or
(b) that it is appropriate to do so, in the particular circumstances of the case, having regard to any risk that failure to do so would be such a breach.
The Lord Chancellor has issued guidance regarding EF. Paragraph 7 states:
The purpose of section 10(3) of the Act is to enable compliance with ECHR and EU law obligations in the context of a civil legal aid scheme that has refocused limited resources on the highest priority cases. Caseworkers should approach section 10(3)(b) with this firmly in mind. It would not therefore be appropriate to fund simply because a risk (however small) exists of a breach of the relevant rights. Rather, section 10(3)(b) should be used in those rare cases where it cannot be said with certainty whether the failure to fund would amount to a breach of the rights set out at section 10(3)(a) but the risk of breach is so substantial that it is nevertheless appropriate to fund in all the circumstances of the case. This may be so, for example, where the case law is uncertain (owing, for example, to conflicting judgments).
In the latest statistics from the Ministry of Justice (Ad Hoc Statistical Release: Legal Aid Exceptional Case Funding 1 April 2013 to 31 March 2014) of 1,519 applications in total only 57 have been granted (42 of those for Inquests). Of 81 Housing Law applications only 1 had been granted.
The six claims in this matter, which were all heard together, involved immigration matters that were now out of scope for legal aid. The six claimants were all refused EF to assist them in presenting their cases. They relied in their claims on breach of Article 8 of the European Convention on Human Rights (‘the Convention’). Article 8 concerns the rights to respect for private and family life and home (since these were immigration matters the claimants could not rely on Article 6, the right to a fair hearing). Collins J quashed all of the decisions to refuse funding. He stated:
41. In a decision given on 2 May 2014, Coulson J considered the proper approach to s.10(3). The case in question is M v Director of Legal Aid and Casework  EWHC 1354 (Admin). …
42. There had been argument about what was meant by an exceptional case. He decided that it covered cases which fell outside Part 1 of Schedule 1 and so were an exception to the general regime which limited a right to legal aid (subject to means and merits which include cost considerations) to cases falling within Part 1. Thus exceptional has no wider meaning. This construction is not challenged by Mr Chamberlain.
43. Coulson J considered that cases falling within s.10(3)(a) would be extremely rare since they would require the defendant to be able to identify, in advance, a case where the non-provision of civil legal aid would, without qualification, be a breach of the applicant’s Convention rights. He continued in Paragraph 59:-
“That requires complete certainty on the part of the defendant at the outset and therefore requires a very high threshold.”
44. It is difficult to see that, if certainty is the appropriate test, s.10(3)(a) could ever apply. It does not seem to me that certainty is the appropriate test nor does the language used in s.10(3)(a) require it. In order to establish a breach of a human right, an individual has to establish on the balance of probabilities that such a breach has occurred. ECtHR jurisprudence suggests that a high level of probability is required. I see no reason why that should not be applied in s.10(3)(a) since Parliament must be taken to have appreciated that that was how breaches could be established. This seems to me to be the correct approach if s.10(3)(a) is to have any sensible application. Thus if the Director is satisfied that legal aid is in principle needed when its refusal would to a high level of probability result in a breach, s.10(3)(a) is met and means and merits will determine whether legal aid is to be granted and to what extent.
50…..If legal aid is refused, there must be a substantial risk that there will be a breach of the procedural requirements because there will be an inability for the individual to have an effective and fair opportunity to establish his claim. That principle will apply whether there are court or tribunal proceedings or a decision from the Home Office. It follows that I do not entirely accept Coulson J’s conclusion in M that the test whether the refusal would impair the very essence of the right leads to a conclusion that the grant of legal aid will only rarely be appropriate. The very essence is that in procedural terms it can be put forward in an effective manner and there is a fair process.
51. It follows from what I have so far said that in my view the Guidance is defective in that it sets too high a threshold and fails to recognise that Article 8 does apply even in immigration cases and, despite the exclusion of Article 6, carries with it procedural requirements which must be taken into account.
On the test under Article 6 of the Convention (which came into the case through the question of the scope of Article 47 of the EU Charter of Fundamental Rights), Collins J noted that:
19. The ‘overarching question’ posed in the Guidance is ‘whether the withholding of legal aid would make the assertion of the claim practically impossible or lead to an obvious unfairness in proceedings.’ This is said to be a very high threshold.
The judge concluded that:
28. It seems to me to be clear that the key considerations are that there must be effective access to a court and that there must be overall fairness in order that the requirements of Article 6 are met. One aspect of effective access must be the ability of a party to present all necessary evidence to make his case and to understand and be able to engage with the process. … It must be borne in mind that both before a tribunal and a court the process is adversarial. Thus the tribunal cannot obtain evidence where there are gaps in what an applicant has been able to produce. Equally, it may have difficulties if there is defective written material put before it in appreciating whether there is any substance to a claim or even if any particular human rights claim is properly raised. I think the words ‘practically impossible’ do set the standard at too high a level, but… the threshold is relatively high. No doubt it would generally be better if an appellant were represented, but that is not the test. Nevertheless, the Director should not be too ready to assume that the tribunal’s experience in having to deal with litigants in person and, where, as will often be the case, the party’s knowledge of English is non-existent or poor, the provision of an interpreter will enable justice to be done.
This is an extremely important decision for all those who might need to try and rely on EF. It might be hoped that the Government would now ensure that EF really did become the ‘safety net’ it was intended to be but it is understood that the Government are appealing against this decision. Collins J granted permission to appeal to the Government in respect of all claimants except Ms Gudanaviciene, due to his finding that withholding funding, even on the Lord Chancellor’s approach, was perverse. He also imposed a stay on his judgment for a period of 28 days to enable the Lord Chancellor to make an application to the Court of Appeal.
Gypsies and Travellers may want to seek EF in circumstances where legal aid is otherwise unavailable, for example:
1. To defend a county court possession action regarding an unauthorised encampment;
2. To be represented before a Planning Inspector on a planning appeal;
3. To take a case to tribunal where a local authority are failing to deal with serious disrepair issues on a rented site.
Gypsies and Travellers who seek to challenge a refusal of EF can not only rely on Article 8 but also on Article 6, the right to a fair hearing.
A CLP client has lodged a judicial review on this issue and will be seeking to rely on the decision in the Gudanaviciene case. Watch this space!