Regulation 69 enables an applicant whose application has been refused to seek a review if he uses the specified form and includes written representations within 14 days. It is to be noted that the obligation to provide reasons and notice of any right of review is limited under regulation 68(2)(a) to a case where the Director makes a s.10(2)(a) determination. The right of review under regulation 69(1) is available (so far as material) where there has been a refusal to make a s.10(2)(a) determination or there has been a determination that an individual does not qualify for services under s.10(2)(a): see regulation 69(1)(a) and (b). No doubt the reference to making a s.10(2)(a) determination in regulation 68(2)(a) extends to a refusal to make such a determination since otherwise 68(2)(a) read with 69(1)(a) and (b) is meaningless. It is difficult to understand why regulation 68 does not require reasons and an indication of the right of review in negative determinations under s.10(2)(b). It seems that the Director’s practice is to give reasons and to notify of the right of review in relation to both s.10(2)(a) refusals and s.10(2)(b) adverse decisions. That must continue whatever the regulations may say since otherwise there would be serious unfairness to individuals whose applications failed whether under s.10(2)(a) or 10(2)(b).
An exceptional case determination must be made if otherwise there would be a breach of an individual’s human rights under the ECHR or enforceable EU rights (LASPO s.10(3)(a)). If there is a risk of such a breach, such a determination may be made if the Director considers it appropriate to do so. Thus he is given a discretion where such a risk exists. It must be obvious, having regard to the obligation to provide ECF if otherwise there would be a breach, that the extent of the risk is a highly material consideration. If a refusal of ECF is likely to mean that there will be a breach, it would be difficult for the Director to justify a refusal of ECF, provided of course that the financial and merits tests are otherwise met.
LASPO was enacted in order to limit the grant of legal aid with a view to making savings in the cost to public funds. To that end a significant number of claims were taken out of scope and only qualified if the criteria set out in s.10 were met. The court in R(G) stated in paragraph 56:-
“It can therefore be seen that the critical question is whether an unrepresented litigant is able to present his case effectively and without obvious unfairness. The answer to this question requires a consideration of all the circumstances of the case, including the factors which are identified at paras 19 to 25 of the Guidance. These factors must be carefully weighed. Thus the greater the complexity of the procedural rules and/or the substantive legal issues, the more important what is at stake and the less able the applicant may be to cope with the stress, demands and complexity of the proceedings, the more likely it is that article 6(1) will require the provision of legal services (subject always to any reasonable merits and means test). The cases demonstrate that article 6(1) does not require civil legal aid in most or even many cases. It all depends on the circumstances. It should be borne in mind that, although in the UK we have an adversarial system of litigation, judges can and do provide assistance to litigants in person. The outcomes in X v UK, Munro and McVicar show that it is not a requirement of article 6(1) that legal services be provided in all but the most straightforward of cases. On the other hand, the outcomes in Airey, P,C and S, Steel and Morris and AK and L do not show that legal services are required only in such extreme cases as these. In short, we do not accept the submission of Mr Chamberlain that these decisions justify the passages in the Guidance which we have criticised at paras 44-45 above.”
It is in my view unhelpful to refer to high thresholds in considering whether ECF should be granted. The test is that set out by Parliament in s.10 of LASPO and what that involves is stated by the Court of Appeal in R(G). The court referred to the approach of Chadwick LJ in Perotti v. Collyer-Bristow  All ER (D) 463 where at paragraph 32 he said:-
“The test under Article 6.1, as it seems to me, is whether a court is put in a position that it really cannot do justice in a case because it has no confidence in its ability to grasp the facts and principles of the matter on which it has to decide. In such a case it may well be said that a litigant is deprived of effective access…..because, although he can present his case in person, he cannot do so in a way which will enable the court to fulfil its paramount and over-arching function of reaching a just decision.”
Chadwick LJ had prefaced these observations by stating that a litigant who wished to establish that he needed legal aid to enable him to have effective access had a relatively high threshold to cross. The court in R(G) stated that it did not find that helpful. There is a need for both procedural justice (fairness) and substantial justice (reaching the correct result). Both of these have been considered in the ECtHR jurisprudence and that was what the court decided should be applied.
The adjective ‘exceptional’ does not mean any more than that the funding is outside that which can generally apply. It carries no indication that it will need any particular threshold.
I have set out the material provisions in the regulations in some detail. They are complicated and the prescribed forms which must be used to make applications for ECF require, as will become apparent, knowledge of not only ECHR law but of the various categories into which the specified provider of the services falls. The forms, as Mr Chamberlain recognised, are designed to be filled in by providers and not by applicants in person. Mr Hermer’s first ground is that the scheme as operated by the first defendant is intrinsically unfair because it does not enable those who need assistance in either making or resisting claims or ascertaining with proper expert advice from a lawyer whether they have a valid claim or defence which needs representation to obtain the necessary assistance. The result has been and continues to be that some of the most vulnerable are deprived of a fair hearing in that they are unable to present their cases effectively. Mr Hermer described this ground as an “evidence based impeachment of the operation of the ECF scheme”.
The evidence relied on is contained in some 85 witness statements. The evidence has been helpfully summarised in what has been described as a Scott Schedule setting out under 19 separate headings the defects in the scheme relied on by the claimant, the essential material said to support each heading and the response of the defendants to each of the headings. Statements have been lodged by providers who have made some 20% of applications for ECF. This has been relied on by Mr Chamberlain in submitting that it cannot be said to represent other than a relatively small proportion of those who have made such applications. In addition, the first defendant has evidence from Helen Keith, a solicitor in his ECF team, making the point that some 24 of the providers who have lodged statements have not submitted any application for ECF, a further 20 have submitted only one and a further 13 only two. This is relied on to suggest that there has been insufficient knowledge or experience of the scheme to justify the criticisms. Further, overall the point is made on the defendants’ behalf that much of the evidence relied on relates to an approach dictated by the guidance which set too high a threshold and which I and the Court of Appeal decided was unlawful.
Until my decision in June 2014, the success rate in grants of non-inquest ECF amounted to a little over 1%. That on any view is a very worrying figure. It has since increased. There has been some argument about the precise calculations, but I need not go into detail. Suffice to say that I am satisfied from the claimant’s evidence, albeit the defendants have said that the success rate has risen above 15%, it is more likely to be, when proper account is taken of the limitation to non-inquest cases, about 13%. That remains a very low figure.
The basic submission in the first ground is that the scheme is insufficiently accessible. Even for lawyers, the prescribed forms are far too complex and the information required is excessive. For those without any legal assistance, they are almost impossible to understand and to fill out satisfactorily. The defendants recognise that the forms were designed for providers, usually solicitors. In answering the criticism, the defendants refer to the LAA website in which this is said:-
“If you choose to apply but do not use the prescribed forms then we are likely only to be able to provide you with a preliminary view based on the available information.
Please as a minimum include the following in your application.
1. The background to your case, including all the main facts.
2. What you need legal advice in or what court proceedings you need representation in.
3. Why you cannot represent yourself.
4. What outcome you wish to achieve.
5. Any relevant information that will support your application, e.g. Court applications and orders, expert and medical reports, copies of any decisions you wish to challenge.
6. Information on your financial situation.
If we either make an ECF determination or provide you with a positive preliminary view that your case might be exceptional, you will then need to find a legal advisor who will make the full application for you. It is also important to understand that a positive preliminary view is not a guarantee that a ECF determination will be made after the consideration of a full application and also that a determination may be withdrawn if, for example, new information is provided to us. If we are unable to make a determination or provide a preliminary view on the information you supply to us then you may seek help from a legal advisor.”
The Provider Pack available to providers says:-
“A client may apply direct to the LAA for exceptional funding. When this happens we will deal with the application, in whatever format it is made, on the basis of the information provided by the client. In the absence of a fully completed application for an exceptional case determination and provided that there is sufficient information to do so it is most likely that the ECF Team will provide a preliminary view based on the available information”.
It goes on to state that a fully completed application will have to be submitted together with a means form. Providers are told that they will not receive any payment unless a successful determination results and are warned that a positive preliminary view may not result in a grant of ECF if, for example, the applicant fails the means test or information given by the provider differs from that provided by the client so that the other tests fail.
Statements in support of this claim obtained on behalf of the claimant came from many voluntary bodies and law centres who have been unable to find providers who are prepared to take on clients who may need some form of legal assistance. This is because, as the solicitors have indicated, they simply cannot afford to do the necessary work in investigating a client’s problem and in making an application for ECF because the high refusal rates mean they will not be likely to be paid anything for the work done. Those who have provided statements were described by Mr Hermer in argument as a “roll call of the great and the good of public law”. Certainly they include a significant number of solicitors who provide a service for those who cannot afford to pay for legal assistance and who have assisted and will continue to try to assist even if payment is inadequate or not available. But there is a limit to the ability to provide pro bono work: the firm must survive and can only survive if money comes in. The work which has to be done will often require relatively specialist knowledge, for example in family or immigration cases. That is not work which many solicitors will be experienced enough to deal with and those who can are reluctant to take on cases when the prospect of being paid is remote.
Legal aid payment rates have not only not been increased since 1998-9 but have been subjected to a 10% reduction from 3 October 2013 by The Community Legal Service (Funding) (Amendment No 2) Order 2011. There was a reduction of some 28% in the year 2013-14 in provisions of civil and family legal aid assistance and the Law Society has warned that ‘the future sustainability of legal aid practice is in significant doubt’. In addition to a report from the National Audit Office of November 2014, Mr Hermer in his skeleton argument sought to rely on reports from House of Commons committees. As Mr Chamberlain pointed out in his skeleton argument, such committee reports cannot be used before courts since to do so would breach Article IX of the Bill of Rights. It is not permissible for the court to be asked to agree or to disagree with any statement made in such a report: see Office of Government Commerce v. Information Commissioner  EWHC 774 (Admin).
In its key findings, the National Audit Office noted that in 2013-14 the LAA agreed funding for Legal Help in 326,004 fewer cases than would have been expected without the reforms and for representation in court for 36,537 fewer cases. In the need for the courts to deal with many more litigants in person resulted in an additional cost of about £3 million per year (also within the MOJ budget). The most worrying finding was that the Ministry did not know whether or not all those eligible for legal aid were able to access it. Accordingly, it could not be satisfied that it was targeting funding at those most in need. Some areas of the country have no active providers of legal aid. Figures showed that in 14 local authority areas no legal aid funded work was commenced and that in 39 other such areas a maximum of 49 pieces of legal aid work per 100,000 inhabitants were commenced. The bulk of those figures arose when the over restrictive guidance was applied. There has been, it is said, a change of approach since June 2014 when my judgment was delivered in R(G).
A particular adverse effect of the LASPO reforms has been on family cases and the increase in litigants who should have been granted legal assistance but have to appear in person. In a recent judgment delivered on 10 March 2015 MG and JG v. JF and JFG  EWHC 504 (Fam), Mostyn J expressed concerns at the effect of the failure to grant legal aid in children proceedings, which are no longer in scope. He observed on the facts of the case before him that it was impossible for the applicants to be expected to represent themselves having regard to the factual and legal issues at large. There would, he said, be a gross inequality of arms and “arguably a violation of their rights under Articles 6 and 8 of the ECHR.”
In paragraph 15 of his judgment, Mostyn J observed:-
“Since the reforms have taken effect there have been an appreciable number of cases which have demonstrated that the blithe assumption in the consultation paper (that the parties’ emotional involvement in the case will not necessarily mean that they are unable to present it themselves and that there is no reason to believe that such cases will be routinely legally complex) is unfounded. This was entirely predictable”.
He then identified nine judgments. He continued:-
“This is a formidable catalogue. Each case focussed on the gross unfairness meted out to a parent in private law proceedings by the denial of legal aid. I do not think it would be right to say that those were examples of the law of unintended consequences since, as I say, the problems were entirely predictable”.
In Lindner v. Rawlins  EWCA Civ 61, the Court of Appeal heard a case where an unrepresented husband had to deal with a refusal to order disclosure from the police in a defended divorce case. The wife neither appeared nor was represented and the court observed that the appeal was ‘technical and unusual and that the husband could not be expected to have mastered the area of law to be able to present his appeal in a way which assisted the court’. The result, as Aikens LJ states in paragraph 34, was that the court had to spend considerable time in going through the relevant documents and researching the applicable law.
“All this involves an expensive use of judicial time, which is in short supply as it is. Money may have been saved from the legal aid funds, but an equal amount of expense, if not more, has been incurred in terms of the cost of judges’ and court time. The result is that there is, in fact, no economy at all. Worse, this way of dealing with cases runs the risk that a correct result will not be reached because the court does not have the legal assistance of counsel that it should have and the court has no other legal assistance available to it”.
In Re:D (A Child)  EWFC 39, a decision on 14 November 2014 an unrepresented father who lacked capacity had applied to revoke a care order and the local authority was seeking to place his child for adoption. Sir James Munby, P eventually after what Mostyn, J describes as ‘heavy pressure’ persuaded the LAA to award some legal aid. Sir James observed (paragraph 31 (vi) of his judgment):-
“Thus far the State has simply washed its hands of the problem, leaving the solution to the problem which the State has itself created - for the State has brought the proceedings but declined all responsibility for ensuring that the parents are able to participate effectively in the proceedings it has brought – to the goodwill, the charity, of the legal profession. This is, it might be thought, both unprincipled and unconscionable. Why should the State leave it to private individuals to ensure that the State is not in breach of the States’ – the United Kingdom’s obligations under the Convention?”
Sir James suggested that in a case where an unrepresented parent faced serious allegations but the LAA refused legal aid the court might have to provide payment from its own budget. In Re: K and H (Children: Unrepresented Father: Cross examination of child) EWFC 1, Judge Bellamy took up this suggestion, but the Court of Appeal has recently allowed an appeal by the Lord Chancellor stating that the court had no power to make any such order. As Mostyn J observed:-
“It can be said that in the field of private children law the principle of individual justice has had to be sacrificed on the altar of public debt”.
It is difficult to imagine a family case, particularly when there are contested issues about children, in which there would not be an interference with the Article 8 rights of either parent or the children themselves. Thus unless the party seeking legal aid could albeit unrepresented present his or her case effectively and without obvious unfairness, a grant of legal aid would be required. That does not mean that every case will require it: some may be sufficiently simple for the unrepresented party to deal with. Obviously if there is a lack of capacity even such cases may require legal aid. That issue I will have to consider in further detail later. But I am bound to say that I believe that only in rare cases, subject to means and merits if properly applied, should legal aid be denied in such cases. As it is now applied, the scheme is clearly wholly deficient in that it does not enable the family courts to be satisfied that they can do justice and give a fair hearing to an unrepresented party. While the problem may perhaps be less acute in other civil cases, I have no doubt that the difficulties I have referred to in family cases apply.
The defendants have drawn attention to the fact that some of the solicitors who have made statements in which they have said that they would find it impossible to take on new clients who wished to apply for ECF have made subsequent applications. It must be borne in mind that solicitors might in any case receive payment from the client for any preliminary work so that the failure of the application and so the lack of payment for any work will not be damaging. Naturally, solicitors advise any client on the likelihood of success in the application and should not advance an application which is obviously untenable. I do not think that any adverse conclusion can be drawn from the submission of further applications. Some may have been from existing clients and some from clients who have been able to afford the amounts set by the solicitors for doing the preliminary work. Further, it may be that there was hope that after R(G) the abysmally low rates of grant would be increased to a reasonable level. That has not happened.
Thus the scheme is not working as it should. The evidence produced for the claimant provides no confidence that there are likely to be any real improvements. The first matter relied on is the lack of accessibility. The prescribed forms are said to be far too complicated to be able to be completed by lay persons and there is little chance that an individual will be able to find a provider who is prepared to do the necessary work to make an ECF application. Even experienced solicitors have difficulty with the forms.
In R(PLP) v. Lord Chancellor  1 WLR 251, Moses LJ giving the only reasoned judgment observed at paragraph 87:-
“Nor has it proved necessary to consider the proposed application form to apply for exceptional funding under Section 10. Mr Eadie, on behalf of the Lord Chancellor, accepted that it was far too complicated and needs simplification and revision if it was going to be of any assistance to residents, let alone a foreigner”.
It is said by Mr Chamberlain that the transcript does not show that Mr Eadie did make that concession. But whether or not he did is not material since the observations were based on the court’s knowledge of the forms. Furthermore, it is accepted as is inevitable that the forms are indeed far too complicated for lay persons to complete.
The ECF application form commences with a requirement, following regulation 67 of the Procedure Regulations, to specify whether Licensed or Special Case Work on the one hand or Controlled Work Services were required. If the former, a form CIV App 1 (for non-family work) or CIV App 3 (for family work) had to be submitted in addition. If the latter, a different form is required. Licensed Work is defined in regulation 29(2) to mean:-
“….the provision of any of the following forms of civil legal services –
(a) family help (higher); or
(b) legal representation that is not Controlled Work or Special Case Work”
Special Case Work is defined by regulation 2 to mean “Civil Legal services provided under an individual case contract in the circumstances described in regulation 54(3).” Essentially, this covers cases in which costs are expected to exceed £25,000 or cases which have wide public interest or, for example, are going to the Supreme Court. Controlled Work is defined in regulation 21(2). It is likely to be a common form of work applied for since it covers “any of the following forms of legal services –
(e) legal representation for proceedings in [four specified tribunals].”
These are first-tier Mental Health tribunals in England and Wales and both the first tier and upper tier tribunals dealing with immigration and asylum cases. Thus the legal representation applications which are for Licensed work cover representation in courts and all tribunals not mentioned in regulation 21(2)(e).