High Court hears challenge to legal aid Exceptional Case Funding scheme
The High Court will tomorrow hear a judicial review challenge to the operation of the Exceptional Case Funding (ECF) scheme for legal aid.
The scheme was established by the Legal Aid, Sentencing and Punishment of Offenders Act (LASPOA) 2012. The Government insisted it would protect the rights of vulnerable and incapacitated individuals who cannot represent themselves and need the services of a lawyer, and who would otherwise be denied access to justice.
But the Public Law Project (PLP), instructed by the Official Solicitor, has brought a ‘systemic challenge’ to the scheme on behalf of a vulnerable individual.
According to the PLP, the claimant will argue that the operation of the scheme, by the Lord Chancellor and the Legal Aid Agency, is “unlawful in that it obstructs the very purpose of the legislation – to provide legal aid funding to those who need it most”.
A previous High Court challenge in 2014 – in R (Gudanaviciene and Others) v DLAC and Lord Chancellor [2014] EWHC 1840 (Admin) – had established that the Lord Chancellor’s guidance on ECF was unlawful.
Commenting ahead of this week’s hearing, PLP said: “The Lord Chancellor’s guidance is currently being re-drafted, but concerns about the scheme go far beyond its content.
“PLP will be producing compelling evidence in the form of individual case studies that show that the application process is long drawn out, complex and time consuming. Solicitors are not paid unless the application succeeds, so many of them are unwilling to make applications. Persons who are not represented find the application process inaccessible. Many applications only succeed if solicitors take them to the point of threatening a judicial review.”
The legal charity added that the claimant’s evidence included more than 70 witness statements, alongside statements from PLP’s own casework team detailing its experiences of helping applicants to access the ECF scheme.
Richard Hermer QC and Chris Buttler of Matrix Chambers are instructed to represent the claimant at the hearing.
The Official Solicitor acts as last resort litigation friend for parties who lack the mental capacity to conduct their own cases.
