Published:  20th January 2020

A survey carried out by Public Law Project indicates that legal aid providers lack faith in the Exceptional Case Funding (ECF) scheme and shows that a large percentage of respondents rarely make applications on behalf of their clients.

Read Improving Exceptional Case Funding: Providers’ Perspectives.

The survey results showed:

  • 77% of respondents disagreed that ECF is effective in ensuring that people can access legal aid when it is needed (61% ‘strongly disagreed’)
  • 64% of respondents made between 0-5 applications in the last year (20% made none)
  • Nearly 50% of respondents have only made between 1 and 5 applications since the scheme was introduced
  • 39% of respondents said they do not make ECF applications on behalf of their clients

Reasons stated for not using the scheme included:

  • The risk of not being paid because of the low success rate
    • Previous applications being refused, and
    • The application process being off-putting, particularly due to it being time consuming.
  • 75% of respondents said they would be more likely to make applications if the Government implemented improvements following commitments set out in The Way Ahead. These include:
    • Working with legal aid practitioners to consider if the process can be simplified
    • Improving the timeliness of the process, and
    • Consider introducing an emergency procedure for urgent matters.

Public Law Project Research Director Dr Joe Tomlinson said:

“The Exceptional Case Funding scheme was brought in after LASPO to act as a safety net to ensure that legal aid would still be available where an individual’s European Convention or EU law rights would otherwise be breached. It is no secret that since its introduction, the scheme has not functioned as it should.

“A major cause of this failure has been the low number of applications made to the scheme. Even at a peak of 3,018 in 2018-19, the number of applications has remained well below the 5,000 to 7,000 per year that was initially anticipated by the Government.

“Due to the complexity of the scheme, the vast majority of ECF applications are made on behalf of individuals by legal practitioners but, as our survey suggests, there is little faith in the system and not enough appetite to use it. Over three quarters of those surveyed do not agree that the scheme meets its original objective, which was to ensure that people can access legal aid when it is needed.

“Given how important practitioners are to application process, the results suggest that increasing the confidence that legal aid providers have in the scheme will be critical to the success of any changes the Ministry of Justice decides to implement.

“The better news is that a clear majority of those surveyed said that they are likely to make more applications if the Government implements improvements already outlined in The Way Ahead.

“The survey provides a strong indication of provider experience and a detailed framing of key issues. We have shared our findings with The Way Ahead team at the Ministry of Justice.”

The survey also showed

  • 30% of respondents indicated that they use alternative strategies to avoid making ECF applications such as pro bono work, using grant funding, limiting the number of cases taken at any one time, and advising self-help alternatives
  • 53% of respondents disagreed that the Legal Aid Agency provides clear information about the eligibility criteria for ECF, and
  • None of the respondents were completely satisfied with timeliness of the scheme for urgent or non-urgent applications made since the scheme was introduced.

Next steps

The survey results, published in Improving Exceptional Case Funding: Providers’ Perspectives  prompts a number of questions about how the ECF scheme could be improved in the context of wider legal aid reforms. These include:

  • Whether Article 8 immigration cases ought to be brought back into scope for legal aid given the volume of successful applications in the immigration context, and
  • If giving further powers to legal aid providers to grant ECF for controlled work would improve the operation of the scheme, particularly in areas where there is a high demand and where the evidence indicates providers have a good understanding of the criteria.

The report concludes that such reforms would present an opportunity to remove the evident disincentives for applications and lower the Legal Aid Agency’s administrative burden, which is also a source of problems. Reducing the number of immigration applications which have to be processed by the ECF team (whether by bringing such cases back into scope or granting delegated powers) would free up resources to consider urgent or more complex applications, thus potentially reducing decision times.

Read Exceptional case funding scheme failing, report reveals, Monidipa Fouzder, The Law Society Gazette, 20 January 2020

Notes to Editors

  1. The Public Law Project survey was open to responses between 10th October and 15th November 2019. There were 89 responses (just short of a statistically significant sample).
  • Of the respondents, 80 were legal aid providers. Nine responses were submitted by other organisations that provide legal advice and support.

About Public Law Project

  1. PLP was set up to ensure those marginalised through poverty, discrimination or disadvantage have access to public law remedies and can hold the state to account.
  2. Our vision is a world in which individual rights are respected and public bodies act fairly and lawfully. 
  3. Our mission is to improve public decision making and facilitate access to justice.
  4. Our priorities are to:
    • Promote and preserve the Rule of Law
    • Ensure fair systems
    • Improve access to justice