Social Welfare Lawyers in the Centre of Birmingham

Exceptional Funding

The Director of Legal Aid Casework and the Lord Chancellor – v – IS [2016] EWCA Civ 464, Court of Appeal, 20 May 2016

IS was a party acting by the Official Solicitor and was trying to obtain representation to assist him in an immigration matter.

The matter he was dealing with was out of scope for legal aid under the Legal Aid, Sentencing and Punishment of Offenders Act (LASPOA) 2012.  Under Section 10 of LASPOA 2012 it is stated:-

(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 particular circumstances of the case, having regard to any risk that failure to do so would be such a breach. 

This is known as exceptional case funding (ECF).

IS took a judicial review challenge when he was refused ECF.  Collins J, at first instance, allowed his application for judicial review and granted declarations that the ECF scheme was unlawful, and that the Civil Legal Aid (Merits Criteria) Regulations 2003 and the Exceptional Case Funding Guidance (Non-Inquests) were also unlawful.  The Director of Legal Aid Casework and the Lord Chancellor appealed against these decisions.

There was a split decision, Laws LJ and Burnett LJ allowed the appeal.  Lord Justice Briggs would have dismissed the appeal.

Laws LJ stated as follows:-

18. ….The subject-matter is a system which has to cater for many individual cases: how, then, in principle does the law encapsulate the difference between an inherent failure in the system itself, and the possibility – the reality – of individual instances of unfairness which do not, however, touch the system’s integrity?  The question points up the danger….that the judge may cross the line between adjudication and the determination of policy, he may (however unwittingly) be too ready to treat his individual criticisms as going to the scheme’s legality…..


23. ….I note [Collins J’s criticisms of the ECF form] ….The points the judge makes are in essence a series of individual exhortations to improvement…..I consider that Collins J’s approach to the case does not clearly gather his strictures into a reasoned conclusion to the effect that the scheme fails to meet the test [of inherent unfairness]….


In conclusion Laws LJ stated:-

55. In the result, while I recognise that such a judgment is inexact and even impressionistic, I have concluded that the scheme is not inherently or systematically unfair.  I recognise that it is heavily dependent on the participation of providers, given the difficulties clearly faced by lay applicants and the absolute need of assistance for those with disabilities.  However our knowledge of the attitudes of providers to the scheme is partial at best.  So far as we can ascertain, their response to its challenges is by no means uniform, and in the nature of things will not be static: the learning curve will continue….

57. The extent of the difficulties is however troubling.  No doubt the LAA and the Lord Chancellor will be astute to look for improvements, and will do so on a continuing basis.

As stated above Briggs LJ would have dismissed the appeal and upheld Collins J’s Judgment.  He stated:

78. It is in my view the combination of those two features, namely an application process which is in accessible to most LIPs [ litigants in person] and the absence of an economic business model sufficient to encourage lawyers to apply on their behalf, which makes the ECF scheme inherently defective and therefore unfair…..

84. It is notorious that, despite their laudable and valiant endeavours, those lawyers who offer to work pro bono for deserving clients are insufficient to meet anything approaching the demand for their services, so that there must be (however difficult to quantify) a substantial class of deserving applicants who can neither obtain ECF on their own, nor obtain the legal assistance necessary for them to do so. 

It is extremely disappointing that the majority in the Court of Appeal have arrived at this conclusion.  We fully concur with the judgment of Briggs LJ and we trust that this matter will now proceed to the Supreme Court.  It seems absolutely clear to us that the ECF Scheme is systematically unfair.

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