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Exceptional Case Funding – guidance for solicitors

10 October 2019

This guide is for all solicitors but is of particular relevance to solicitors who deliver civil legal aid services.

Overview

The Legal Aid, Sentencing and Punishment of Offenders Act 2012 (LASPO) removed many areas of law from the scope of legal aid, retaining only those listed in Part 1 Schedule 1 of LASPO.

In response to concerns raised in the consultation prior to LASPO, the government included provision for Exceptional Case Funding (ECF) in section 10 of LASPO. This is funding that can be made available in cases outside the scope of legal aid where, without it, there would be a breach, or the risk of a breach, of:

  • an individual’s rights under the European Convention on Human Rights (ECHR), or
  • their rights to legal aid under EU law, principally under the Charter of Fundamental Rights of the European Union (the Charter)

At the outset of the scheme it was very difficult for many people to get non-inquest ECF. In the first year of the scheme approximately 1% of applications were successful. 

However, the grant rate has risen significantly, to 65% in October to December 2018. This is due to changes to the ECF guidance and practical improvements to the scheme, following the cases of Gudanaviciene and ors v Director of Legal Aid Casework and the Lord Chancellor [2014] EWCA Civ 1622 and IS (by way of his litigation friend, the Official Solicitor) v Director of Legal Aid Casework and the Lord Chancellor [2016] EWCA Civ 464.

When is ECF available?

 
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If a civil case does not fit within the categories of case listed in Part 1 of Schedule 1 of LASPO, it could potentially be suitable for ECF. For ECF to be granted, the case must satisfy the same merits, means and any other regulations made under LASPO as an in-scope case, and the Director of Legal Aid Casework (as delegated to the Legal Aid Agency) must make an exceptional case determination.

An exceptional case determination, as defined in 10(3)(a) LASPO, is a finding that it’s necessary to make legal services available to an individual because a failure to do so would amount to a breach, or a risk of a breach, of their Convention rights or of an enforceable right under EU law.

The first question to be addressed is whether an ECHR or EU law right is engaged. It will be necessary to spell out which rights are engaged in the application for ECF.

Relevant Convention rights

 
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Unlike criminal legal aid, there’s no express right to legal aid in civil proceedings in the ECHR. However, since the decision in Airey v Ireland (1979) 2 EHRR 305, it has been accepted that some Convention rights may have an associated right to legal aid in some civil cases in order for the rights to be practical and effective.

A Convention right to civil legal aid is most likely to arise under Article 6 ECHR, the right to a fair hearing, and Article 8 ECHR, the right to respect for private and family life.

Article 6 ECHR is only engaged, for ECF purposes, where there’s a civil right and/or obligation to be determined. The case law on this is extensive.

Of particular relevance for ECF, it’ll be engaged by:

  • most family proceedings
  • housing proceedings, except in relation to homelessness applications, which the Supreme Court has found not to give rise to a civil right
  • certain welfare benefits or employment tribunal cases

Crucially, Article 6 is not engaged by immigration proceedings, but in Gudanaviciene and ors v Director of Legal Aid Casework and the Lord Chancellor [2014] EWHC 1840 (Admin); [2014] EWCA Civ 1622 it was determined that the procedural obligations arising under Article 8 ECHR can require legal aid to be provided in immigration cases.

Relevant EU law rights

 
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The relevant provision of EU law is Article 47 of the Charter of Fundamental Rights of the European Union. Article 47 states that “Everyone shall have the possibility of being advised, defended and represented. Legal aid shall be made available to those who lack sufficient resources in so far as such aid is necessary to ensure effective access to justice”.

This is engaged when the matter for which funding is needed falls within the scope of EU law.

Test for whether ECF is necessary

 
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If the case for which funding is needed does engage an ECHR or EU law right, then the next question is whether the ECHR and/or Charter require legal aid to be made available. The Court of Appeal judgment in Gudanaviciene and Others v Director of Legal Aid Casework and Anor [2014] EWCA Civ 1622 is now a fairly definitive guide to when it would be necessary.

The question under Article 6(1) ECHR is whether an unrepresented litigant is able to present their case effectively and without obvious unfairness (Gudanaviciene paragraph 56).

The test is essentially the same for Article 8 ECHR and Article 47 of the Charter as it is for Article 6 of the ECHR, although that for Article 8 is broader than Article 6 in that it does not require a hearing before a court or tribunal, but only involvement in the decision-making process.

An effective right is one which is “practical and effective, not theoretical and illusory in relation to the right of access to the courts” and “the question is whether the applicant’s appearance before the court or tribunal in question without the assistance of a lawyer was effective, in the sense of whether he or she was able to present the case satisfactorily” (Gudanaviciene paragraph 46).

In relation to fairness, the court said “it is relevant whether the proceedings taken as a whole were fair”, “the importance of the appearance of fairness is also relevant: simply because an applicant can struggle through ‘in the teeth of all the difficulties’ does not necessarily mean that the procedure was fair” (Gudanaviciene paragraph 46).

Where one party has the benefit of representation, the other will often face an obvious unfairness. The court will not be able to address the disadvantage faced by the unrepresented party. The court cannot advise a litigant or advance one party’s interests, but must remain impartial, even if it is used to dealing with litigants in person.

Assessing whether Convention or EU law rights require funding to be provided involves balancing three factors:

  • the legal, factual and procedural complexity of the matter
  • the importance of what’s at stake
  • the applicant’s ability to represent themselves without legal assistance

Whether a case is a suitable one for ECF will depend as much on the applicant’s ability to cope with the demands of the proceedings as on the complexity of their case. A matter of very great importance to a client (for example, ceasing contact with a child, or the right to stay in the UK) might in some cases require funding even though the matter is relatively straightforward and/or the client is quite capable. Likewise, a really incapable client might need assistance with a relatively trivial or straightforward matter.

Complexity

Legal, factual and procedural complexity are all relevant to whether a grant of ECF is appropriate. They should be clearly spelt out in an application to the Legal Aid Agency (LAA). It’s important to demonstrate that there are complex procedural steps that must be taken, arguments to be made, or evidence to analyse, in order to show that the complexity of the case requires a grant of ECF.

For example, in relation to immigration cases, the Court of Appeal in Gudanaviciene found that “the following features of immigration proceedings are relevant: (i) there are statutory restrictions on the supply of advice and assistance…(ii) individuals may well have language difficulties; and (iii) the law is complex and rapidly evolving” (paragraph 72).

Complexity will vary from case to case. If, for example, ECF is needed for proceedings where the facts are contested, things to consider include whether an individual without legal training would be able to:

  • understand what their evidence must address
  • obtain expert evidence
  • effectively conduct cross-examination
  • make legal submissions during a final hearing

Where someone needs ECF for advice in relation to an immigration application, consider how they will know which form they need to complete and what evidence they will need to provide for the application to be successful. If they need to apply for a fee waiver, consider whether they will know that it is possible to apply, how to do so, and what evidence to provide.

The importance of the issues at stake

As with the other factors to consider, the importance of the issues at stake will vary from case to case. For example, it should be possible to show that any proceedings affecting a family relationship are of importance to an applicant, and any proceedings which will determine the nature of the relationship an applicant will have with their child will be of vital importance.

Ancillary relief proceedings which are purely about money may be less obviously significant, but if your client will be unable to meet their basic needs, or those of any children, or to keep a roof over their heads without a satisfactory outcome then you should emphasise this to show the importance of the issue.

In immigration cases it will generally be possible to show that any proceedings are vitally important if they affect whether the applicant can remain in a country where they have built a life and where members of their family live, or enter a country where close family members live.

In Gudanaviciene the Court of Appeal considered the role played by the importance of the issues at stake in determining whether ECF should be granted. The court observed (in the context of deportation appeals) that: “This should not be regarded as a trump card which usually leads to the need for legal aid. It is no more than one of the relevant factors to be taken into account. The fact this factor will almost invariably be present in deportation cases is not, however, a justification for giving it reduced weight.” (paragraph 77).

The applicant’s ability to present their case effectively

In cases of great importance to the applicant for ECF, emotive issues may make it difficult for them to present their case with the objectivity needed.

Other factors relevant to an applicant’s ability to present their case effectively will include their physical and mental health, their level of education, and their ability to communicate in English.

However, ECF may be awarded even where there is no language barrier and the applicant has capacity to litigate. It may simply be that they cannot understand or carry out the steps they need to take in their case. See, for example, the Court of Appeal’s discussion of the case of ‘B’, one of the respondents in Gudanviciene and ors v The Director of Legal Aid Casework and The Lord Chancellor at paragraph 172 of the judgment.

Making an application for ECF

 
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Forms/CCMS

If a client needs ECF for controlled work (Legal Help, Help at Court, Controlled Legal Representation, Family Help (Lower)) then it will be necessary to complete and submit to the LAA form CIV ECF1 and the relevant means and merits forms for the case.

If a client needs ECF for licensed work (Family Help Higher, Full Representation, Investigative Representation), then a legal aid provider will be expected to make the application on CCMS.

If the application for ECF is made by a non-legal aid provider, or if CCMS does not allow a legal aid provider to make the ECF application, it‘ll be necessary to complete and submit to the LAA form CIV ECF1 and the relevant means and merits forms for the case.

If a client needs ECF in a category of law that your firm does not have a legal aid contract for, or your firm does not have a legal aid contract at all, it may be possible to apply for ECF for the client, and for an individual case contract for your firm to do the work.

For an individual case contract to be granted in these circumstances, the effective administration of justice test will need to be satisfied. This is set out at regulation 31(5) of the Civil Legal Act (Procedure) Regulations 2010. Note that if a client needs ECF for a case that does not fall within any of the legal aid category definitions and can satisfy the ECF means and merits criteria, it will not be necessary to satisfy the effective administration of justice test.

What to include with an application

The LAA will generally need an account of the basics of the case. This does not need to be particularly long, but, where possible, it should contain a concise account of the relevant background and make clear what the proposed action is. You should also supply key documents relating to the individual’s case.

It may be that you cannot provide a clear account of the action to be taken because you have not been able to take sufficient instructions, obtain relevant information, or because it’s not clear what action the client needs to take. In this case, you need to make clear what points you believe the client needs legal advice on.

It’s also important to consider whether there’s any evidence to support the application, for example a medical report where the client has a condition which would affect their ability to present their case. If you have doubts about your client’s capacity to instruct you this should be explained in the application. It should not be necessary to obtain a capacity assessment to meet the ECF criteria.

When there are restrictions on your ability to take instructions (for example, because doing so would incur travel costs for a client in detention, or interpreters’ fees) then you should make this clear. The function of ECF is to provide funding for the case, and the LAA should not demand information which is beyond your power to obtain without funding.

Urgency

There’s no emergency procedure for ECF applications. If ECF is needed urgently, you will need to tell the LAA in the application.

The ECF Provider Pack states that in cases where the applicant has completed the ‘Urgent Case Details’ section of the form, the LAA will consider the information provided, and if it agrees that the case is urgent, it’ll be dealt with within five working days.

Scenarios that will require urgency include where:

  • there’s an imminent date for an injunction or other emergency proceedings
  • there’s a hearing in existing proceedings
  • a limitation period is about to expire, and
  • a delay would cause risk to the life, liberty or physical safety of the applicant

The LAA’s policy is to decide non-urgent applications within 20 working days and urgent applications within five working days.

The LAA first considers whether it accepts that the application is urgent. If it accepts that it is, it will prioritise it over non-urgent work. If the LAA refuses to treat an application as urgent or fails to deal with it with the degree of urgency required, the remedy is an application for judicial review (for which in-scope legal aid may be available).

What to do if your client is granted ECF

A grant of ECF can generally be backdated to the date that the client signed the forms (controlled work) or date of the first instructions on the matter (legal representation) if the application is submitted within two months of the relevant date.

For a controlled work fixed fee case, work done on the application can count towards the costs of the case exceeding the escape fee threshold. It is, therefore, important to record all time spent on the application as it could ultimately be paid for by the LAA.

The grant of ECF will be subject to scope and cost limitations, as with in-scope legal aid, and applications for amendments to those limitations should be made to the LAA’s ECF team.

What to do if your client is refused ECF

Applicants can ask the LAA to conduct an internal review of a refusal to grant ECF. The application for an internal review should be made on form APP9E, which will be provided with the refusal.

A request for internal review must be made within 14 days of the application being refused, and the LAA aims to process applications for internal review within 10 working days of receipt.

A refusal to grant ECF on internal review can only be challenged by judicial review as there’s no other appeal or review process. Judicial review is in scope for legal aid, and legal aid firms holding a public law contract should be able to provide advice on the merits of challenging an ECF refusal.

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