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High Court finds Exceptional Funding scheme unlawful

Date:15 JUL 2015
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The High Court has today handed down a judgment in a test case which will have profound implications for access to justice.

In a further judgment in the case of 'I.S.' Mr Justice Collins has found that the Legal Aid Agency’s current operation of the Exceptional Case Funding (ECF) scheme is unlawful.

ECF was established to act as a 'safety net' to mitigate the significant cuts to legal aid otherwise contained in the Legal Aid, Sentencing and Punishment of Offenders Act 2012 (LASPO). It was meant to protect those whose fundamental rights would be breached in the absence of legal assistance. The scheme is administered by the Legal Aid Agency (LAA), an executive agency of the Ministry of Justice.

The case was brought by the Official Solicitor of England and Wales on behalf of a claimant known as 'I.S.' I.S. is blind, has profound cognitive impairments, lacks litigation capacity and is unable to care for himself. I.S., like many others, had been refused ECF.

An earlier judgment had already established that I.S. was properly 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.

In hearing this further challenge the Court weighed considerable evidence as to the current operation of the ECF scheme. It found that it is deficient in various respects, including the complexity of the application procedure and the nature of LAA decision-making, and that it is failing to provide the safety net that was promised by Ministers. Mr Justice Collins made it clear that there will need to be significant changes to the operation of the scheme [105].

The Claimant was represented by the Public Law Project (PLP), and Richard Hermer QC, Phillippa Kaufmann QC, Chris Buttler and Ben Silverstone of Matrix Chambers.

Jo Hickman, Director at PLP 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.'
The full judgment is here.