Always reliable and accurate, with a good turnaround speed.
Paul Bunting, Partner, Aspinall Wright Solicitors
When the Government introduced the Legal Aid, Sentencing and Punishment of Offenders Act 2012 (LASPO) they highlighted that the new exceptional funding scheme would help those who were no longer eligible for public funding gain access to justice. LASPO has now been in force for almost six months and a report has been prepared by the Public Law Project to assess its impact.
The Public Law Project (PLP) is a national legal charity which aims to improve access to public law remedies for those whose access to justice is restricted by poverty or some other form of disadvantage. Exceptional funding is one avenue that it utilises to assist those that need access to justice and their report, Exceptional funding: a fig leaf, not a safeguard, looks at the realities of the new scheme.
The test for determination of an exceptional case is set out in Section 10 (3) (a) or 10 (3) (b) of the Legal Aid Sentencing and Punishment of Offenders Act 2012:
3) For the purposes of subsection (2), 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.
What the above confirms is that access to exceptional funding is exactly as its name suggests. Exceptional funding in no way makes up for the vast cuts to Legal Aid and does very little to soften the blow for the vast majority of people who find themselves ineligible for funding.
The Ministry of Justice had estimated that in the first year of LASPO there would be 5000-7000 applications for exceptional funding. This estimate had taken into consideration the areas that had been taken out of scope of Legal Aid and the expected number of litigants who would be unable to represent themselves. The Public Law Project has revealed the staggering underuse of exceptional funding. It has been reported that the Legal Aid Agency has received only 223 applications for exceptional funding in the first three months of LASPO, with 83 of these applications being rejected for being incomplete or in relation to areas of law that are covered by Legal Aid the usual way. It was further reported that only 2 grants of exceptional funding have been made in non-inquest matters: one in a family law case where the applicant had very serious mental health problems and the other in a particularly complex immigration case. To further highlight the difficulty in obtaining funding, the immigration case was only granted funding when judicial review proceedings were threatened after the initial funding application was refused.
One of the main barriers to obtaining exceptional funding is the inability of the applicant to get the funding application off the ground. The difficulty being the need for the applicants to obtain assistance from a legal professional to complete the lengthy and complex application form. The problem, notes the Public Law Project, is that even with their extensive experience it can take many hours to fill out the form, which is work that will be unpaid if the application is unsuccessful. This results in the Catch 22 scenario of needing a lawyer to obtain funding but needing funding to instruct a lawyer.
The conclusion to be drawn from the above statistics is that, as it stands, exceptional funding does not meet the purpose that was publicly bestowed upon it by the Ministry of Justice. The threshold is extremely difficult to meet and even for those applicants that do meet the strict criteria the application process is fraught with difficulties. As noted by the Public Law Project, the Government should not be allowed to justify further cuts to Legal Aid by referring to exceptional funding, as this is in no way an adequate substitute.
For more information on the work done by the Public Law Project in assisting with applications for exceptional funding please visit their website: