Press Release: High Court to hear systemic challenge to the operation of the Government’s legal aid Exceptional Case Funding scheme

On Wednesday 10 June the High Court will begin hearing a judicial review with far reaching implications for the ongoing implementation of the Government’s legal aid cuts.  PLP has been instructed by the Official Solicitor to the Senior Courts (2), on behalf of a vulnerable individual, ‘IS’, in a ‘systemic challenge’ to the operation of the Exceptional Case Funding (ECF) scheme, established by the Legal Aid, Sentencing and Punishment of Offenders Act (LASPOA) 2012.

The ECF scheme was said by the government to 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. It is the Claimant’s position 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.

This case follows on from the successful challenge in 2014 by IS and others in R (Gudanaviciene and Others) v DLAC and Lord Chancellor 2014 EWHC 1840 (Admin) (3), which established that the Lord Chancellor’s guidance on ECF was unlawful.

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 Claimant’s evidence includes over 70 witness statements, alongside statements from PLP’s own casework team detailing our experiences of helping applicants to access the ECF scheme.

Richard Hermer QC and Chris Buttler of Matrix Chambers are instructed to represent IS at the hearing.

A PDF of this presss release is available here.

Notes to editors:

(1)   The Public Law Project (PLP) is an independent, national legal charity which aims to improve access to justice for those whose access is restricted by poverty, discrimination or other similar barriers.

(2)   The Official Solicitor is an independent statutory office holder who acts as last resort litigation friend for parties who lack the mental capacity to conduct their own cases and therefore to take advantage of the services offered by the justice system. https://www.gov.uk/government/organisations/official-solicitor-and-public-trustee/about

(3)   For further information regarding the case R (Gudanaviciene and Others) v DLAC and Lord Chancellor 2014 EWHC 1840 (Admin) we refer you to our own press release here:

http://www.publiclawproject.org.uk/news/46/major-judgment-on-legal-aid-agency-exceptional-funding-scheme-handed-down-today

There is extensive commentary on R (Gudanaviciene and Others) v DLAC and Lord Chancellor by two lawyers representing clients in the challenge, at LAG here: http://www.lag.org.uk/media/206667/grayling_stalls_over_changes_to_exceptional_funding.pdf

(4)   For further information please contact Polly Brendon, p.brendon@publiclawproject.org.uk, or Ade Lukes, 020 7843 1266020 7843 1266