On 1 April 2013 the Legal Aid, Sentencing and Punishment of Offenders Act 2012 will come into force, taking whole swathes of civil law out of scope for legal aid. People with legal problems in areas that are out of scope will only be able to get legal aid if they qualify for exceptional funding. Exceptional funding will be available where it is necessary to avoid a breach of a litigant's rights under the European Convention on Human Rights or EU law.
Guidance from the lord chancellor on exceptional funding (PDF)
Providers will not have delegated powers to grant exceptional funding. Instead they must make an application to the director of Legal Aid Casework at the Ministry of Justice. As things stand, legal aid will not be available for making an exceptional funding application unless the application is successful, in which case legal aid will be backdated.
The Public Law Project (PLP), with help from the Law Society, is running a project to assist litigants with making exceptional funding applications and challenging refusals of exceptional funding where appropriate. PLP is therefore seeking referrals from solicitors who do not have the capacity to make exceptional funding applications for their clients or challenge unfair refusals of funding.
Solicitors should look out for clients with cases in out of scope areas who are unable to effectively represent themselves. The following areas are, in whole or in part, out of scope:
- education
- debt
- housing
- welfare benefits
- non-asylum immigration
- private family law
Exceptional funding will be available in other areas of law which are currently out of scope, in addition to the areas of law referred to above.
The following factors (among others) may mean that clients are unable to effectively represent themselves:
- The case is factually, procedurally and legally complex.
- The issues at stake are of great importance for the litigant, for example, issues of life, liberty, independence, family life, protection from abuse and the welfare of children and vulnerable adults.
- The financial implications of losing the case are ruinous for the litigant.
- The litigant has characteristics which make it difficult for them to represent themselves, such as a physical or mental disability, a communication problem, a limited understanding of English, fluctuating capacity or limited education or literacy levels.
- The litigant has a deep emotional involvement with the proceedings, rendering them unable to advocate objectively in court, for example, where there are allegations of abuse.
- There are no other means of assisting the litigant, for example, there is no pro bono legal help available, there are no other sources of funding available and there are no other routes of seeking redress.
Where solicitors see clients who they think may be eligible for exceptional funding, or where a client has been refused exceptional funding, they can refer them to PLP. PLP will then assist the client with making an application for exceptional funding, or challenging a refusal of exceptional funding, where there are grounds to do so.
However, PLP cannot accept referrals in urgent cases as we will not be able to provide an emergency or out-of-hours service.
PLP will be accepting referrals from 1 April 2013. More details about exceptional funding and how to refer your clients to PLP will be published in due course and will be available at the Public Law Project website.