In December 2013, eight months after exceptional funding was brought in under LASPO, the Joint Committee on Human Rights concluded that the Government could not rely on the scheme to avoid breaches of access to justice rights.
So few grants of exceptional funding have been made that the scheme appears to have failed to serve its intended purpose of providing legal aid where failure to do so would breach (or risk breaching) an applicant's ECHR or EU rights. This is partly because far fewer applications have been received by the LAA than anticipated. However, of the applications made, a much smaller proportion of them have been granted than was originally envisaged by the MOJ.
This article argues that the reason for the low level of successful applications is that too draconian a test has been set by the Lord Chancellor's guidance, which does not address the question of ‘practical and effective' access to the courts but rather whether the ‘assertion of the claim' would otherwise be ‘practically impossible.'
It is suggested that the Guidance does not reflect the Strasbourg authorities on legal aid in family cases, and that some refusals of exceptional funding may be vulnerable to judicial review.
The full version of this article appears in the April 2014 issue of Family Law.
Online subscribers can access the full article here.