While it is accepted by the defendants that the prescribed forms are not designed for applicants who do not have legal knowledge (which will of course include the vast majority of lay applicants), it is said that the forms identify the key information needed by the LAA to make an ECF decision. The ECF form was, it is said, devised to make the process as easy as possible. I have already referred in paragraph 30 above to the information on the LAA website. There was consultation held with inter alia the Law Society and reliance is placed on a response by the Law Society representative who said:-
“There is general concern about how long the form is, and the practicality of practitioners being asked to take on such work for free. However, given the nature of the test the Government has set, I am not convinced there is a lot the LSC can do about that”.
Reliance is also placed on the existence of a telephone help line which is manned by caseworkers or lawyers employed by the LAA during normal working hours. This can do no more than indicate the nature of what is required. It is said that there were 62 applications by individuals who were not lawyers in the first nine months of the scheme. But the evidence is that only one such application has succeeded and the evidence of that successful applicant makes sorry reading as will be apparent when I refer to it in due course.
Providers must have a contract which permits them to do any particular work for which legal assistance is sought. Such contracts are reconsidered from time to time and if too many applications which fail are made, the provider may find that the firm is penalised. That is apart from the reluctance to carry out unpaid work which has seriously reduced the number of those solicitors who are prepared to take on ECF applications.
The ECF application form requires the giving of information under five headings, A to E. There are four separate sub-headings in A under the heading “Generic Information”. The first asks “How important are the issues at stake for the client?”, the second asks “How complex are the proceedings, the area of law or the evidence in question?”. It continues:-
“◦ You should discuss factual, procedural and legal complexity.
◦ Please specify the court, tribunal or other forum in which the case will be heard (e.g. First Tier Tribunal, County Court, High Court).”
The third asks “how capable is the client of presenting their case effectively?” It continues:-
“Please consider the client’s education or relevant skills/experience, any relevant disabilities, the client’s capacity, including whether a litigation friend may be able to conduct proceedings on the client’s behalf.”
The fourth requires that any additional information that is relevant to the question of whether ECF should be made available is specified.
Section B is headed ‘Legal Aid under Article 6 ECHR’ and contains the question ‘Does the case involve a determination of the applicant’s civil rights and obligations?’. If the answer is yes, reasons should be given providing references to any supporting case law if appropriate. The second question is whether the failure to provide legal aid would be a breach of the client’s right under Article 6(1) ECHR. If the answer is yes, the same requirement to give reasons and refer to supporting case law is stated.
Section C is headed ‘Other ECHR Rights’. It asks whether the failure to grant ECF would breach any other ECHR right, and, if so, reasons and, if appropriate, supporting case law should be provided. Section D asks the same question and requires the same information if it is said that the failure to grant ECF would breach an enforceable EU right to legal services, for example under Article 47 of the Charter of Fundamental Rights.
Section E asks for the extent of the services to be provided. This requires the level of services to be specified under the three headings: licensed work, special case work services and controlled work services. These are defined in the Procedure Regulations as I have already indicated. Reasons must be given why the services requested are the minimum required to meet the obligations under ECHR or EU law.
Finally, there is a section which deals with urgent case details, limited to licensed work or special case work services. It asks for details of any imminent dates for an injunction or other emergency proceedings, for a hearing or for the expiry of a limitation period. The questions posed are first whether a delay would ‘cause risk to the life, liberty or physical safety of the client or his or her family or the roof over their heads?’. The second question is whether a delay would ‘cause a significant miscarriage of justice or unreasonable hardship to the client, or irretrievable problems in handling the case?’. If either question is given a positive answer reasons must be given.
The form has not reflected the decision in R(G). Sections B and C are now largely unnecessary. Article 6 does not apply in immigration cases but Article 8 at least almost certainly will, as it will in virtually all family cases. Since the same question will be asked, namely will an unrepresented litigant be able to present his or her case effectively and without obvious unfairness, whether Article 6 or 8 applies, there is no need to distinguish them. Some cases may raise other articles and those can be specified, but it is unlikely that either Article 6 or 8 will not also apply.
I see no reason why a form for those who do not have providers should not in addition be prescribed. This need do no more than require the information set out in the website. The LAA has trained lawyers for whom it should be simple, provided all information is given, to see whether it appears that there would be a need for legal assistance.
There is an additional need to fill in the forms which go into merits and means. I need not dwell on the means form. Merit is covered in the forms which deal respectively with non-family and family proceedings and are used for in-scope applications but only for representation, whether investigative or full. They are undoubtedly far too complicated for litigants in person and are not needed when, for example, the ECF application is for Legal Help. The prospect of success is not directly relevant in such applications.
There is no reason why a form for ECF should not be simplified for practitioners. There is no need to go into human rights law in relation to the essential question which has been identified in R(G). A form can set out the R(G) test and ask why legal assistance is needed in order to satisfy that test. No doubt it will also be appropriate to seek to identify any relevant EU law provision or other ECHR right.
There is as it seems to me a further and fundamental defect in the form and the scheme. It fails to deal with Legal Help which is needed when solicitors are seen by a client and work is needed to see whether he or she does need funding. Solicitors can be expected to take initial instructions and see whether there is a reasonable probability that assistance will be needed. But it may be necessary to obtain medical or expert evidence or in some instances the services of an interpreter. Without any payment this will not be possible. No doubt solicitors can charge those who can afford it a sum for making the necessary enquiries, but the system means that those who are most in need because they cannot afford even a relatively small amount will suffer. In my view, the forms should cover this possibility since merits is not an issue, save that obviously the client’s case on an initial consideration is one which needs to be investigated. If after having investigated the case the solicitor makes an application which is properly refused the failure to be paid for the work involved in filling out the forms will not be unreasonable and will not prevent the solicitor from carrying out the necessary preliminary work. It is in my view essential to fill the gap created by the removal of the Green Form scheme which, regrettably, was sometimes misused. Consideration must in my view be given to this since the evidence is that solicitors are for good reason not prepared to engage in work for which payment is not likely to be received. It must be obvious that without some such help there is at least a risk of a breach of human rights.
According to the statement of Simon MacCulloch, a policy manager in the Legal Aid and Legal Services Policy Team, the MoJ recognised that the policy of not paying providers for unsuccessful applications meant that they would need, in principle, to consider bearing the risk of costs incurred. This was in the context of dealing with disabled clients and the extra costs which were likely to be involved. He says:-
“In summary, our view was that legal service providers routinely made judgments about degrees of risk and accepted or rejected business accordingly. We did not consider it unreasonable to expect them to do so sensibly in respect of the relatively small cost of making an ECF application.”
This approach applied to all cases, not just those involving clients who were under a disability. It was clearly unreasonable when the rate of success was as low as 1% because of the high hurdle erected by the guidance. It remains very low and it is hardly surprising that providers cannot afford to take the risk that no payment for work reasonably done will result. The suggestion that there may be other firms who can provide pro-bono work is hardly reasonable since there is a need for there to be a contract to carry out the work and expertise in understanding and dealing with it.
It is instructive to follow the evidence of an individual who has tried to apply in person. The successful applicant is known as JLE. She describes her experience of trying to get legal assistance as a total nightmare. I need not go into great detail. Suffice to say that she had had a most unfortunate history of abuse when a child and suffered from post natal depression. She was convicted of administering a toxic substance to her very young daughter. As a result of this and her then mental condition, care proceedings were instigated by the local authority in respect of her daughter and her as yet unborn son. It must have been obvious that her desire to maintain contact with her children engaged her Article 8 rights and involved a difficult case which she would be unable to deal with if unrepresented. Her application was refused in a very lengthy but seriously flawed response. She wished to apply for a review. She says (and this is not disputed) that the person to whom she spoke tried to dissuade her on the basis that the matter was not complex. She was advised to go to different solicitors (she had approached her former solicitors) or to a CAB and seek pro-bono help. She had to attend a hearing, which fortunately turned out not to be of great importance, unrepresented, an experience she found incredibly stressful. This was because of delays by the LAA. Eventually, ECF was provisionally granted subject to full means information being supplied.
“In my experience solicitors in my area are not (at least in the absence of payment) willing to help people to make applications for [ECF]. Further, the LAA made no concessions at all for the fact that I was unrepresented. I was actively requested to fill in lengthy and complicated forms, refused funding for legal reasons I could not understand, discouraged from appealing and ultimately denied the positive decision to which I was entitled in time to enable me to be represented.”
It is, as I said, a sorry story. But the refusal on merits grounds I shall have to deal with in relation to the claimant’s second ground.
JLE’s experience shows that the LAA’s approach was at best unhelpful. Certainly the ‘preliminary view’ process did not assist. Since the prescribed forms must be submitted, the problems they create for unrepresented persons in particular are not overcome. The LAA says it does work because three direct applicants whom PLP assisted were given positive preliminary views. That hardly is a clear indication that the system works as it should, particularly as the three were assisted by PLP.
The providers who have made statements all refer to the hours that routinely have to be spent in preparing and lodging applications for ECF. At least 5 hours is in many cases needed. Some time has often to be spent in obtaining full evidence to satisfy the means test. It is difficult to follow why that is needed in cases where it will not be required if the merits test fails. No doubt in some cases, notably where there is some urgency, means will have to be established but otherwise the routine requirement seems to me to be unnecessary. The LAA’s view is that without knowing whether the applicant has the means to pay it cannot determine whether refusal would breach his human rights. No doubt without the means information a decision to agree to provide assistance cannot be made, but there is no reason why a decision should not be made that subject to full means information, on merits grounds ECF would be granted. That was done in JLE’s case and would in many cases save unnecessary work by the providers for which payment might not be received.
Subject to the issues I have dealt with in applications for Legal Help, merit forms will have to be submitted. Again, whether the approach to merits is reasonable and lawful I will have to consider in dealing with the claimant’s second ground.
Complaint is made that the time taken to make applications is unreasonably increased by the LAA’s insistence on a high level of detail. Examples are given of failure without corroborative evidence to accept particular assertions, for example, in relation to capacity of applicants said to suffer from mental problems. It is the LAA’s case that, while it would expect to see any existing reports, it would only require further information if a specific assertion reasonably required in its view further information. Suffice to say, albeit responses are given to the number of cases referred to on behalf of the claimant, the amount of detail required has been in many cases excessive. An example is the case of a paranoid schizophrenic who was due to lose his home. It was said to be reasonable to require evidence of the impact of his schizophrenia on his capability. He had, it was said, been unwell for some 12-13 years so that medical evidence should have existed. In another case an autistic applicant with learning difficulties wanted contact with his daughter. The view expressed by the LAA in refusing assistance was in these terms:-
“The District Judge expressed a view that the client’s family members should not be a Mackenzie friend because of the nature of the allegations….However, supporting evidence to confirm this has not been provided”.
“The Court is a safe environment which offers your client a fair chance to present his views to the court”.
The unreasonableness of this is all too obvious. There have been too many such examples.
Before considering the matters which particularly concern the Official Solicitor (OS) I should see whether the amended guidance meets the concerns expressed by the court in R(G). In paragraph 8, this is stated:-
“The purpose of Section 10(3) of the Act is to enable compliance with ECHR and EU law obligations in the context of a legal aid scheme that has refocused limited resources on the highest priority cases. Caseworkers should approach Section 10(3)(b) with this firmly in mind. It would not usually be appropriate to fund simply because a risk (however small) exists of a breach of the relevant rights. The greater the risk of a breach, the more likely it is that it will be appropriate to make a determination. However, the seriousness of the risk is only one of the factors that may be taken into account in deciding whether it is appropriate to make a determination. Regard should be had to all the circumstances of the case.”
Also in paragraph 13 reference is made to the Court of Appeal’s observations in R(G) that Article 6(1) does not require that funding be granted ‘in most or even many cases’.
I am far from persuaded that LASPO should be construed, despite what Ministers said it was intended to achieve, to limit grants of legal aid to the highest priority cases. What Parliament has provided is that it must be granted if without it an individual will suffer a breach of his Convention or, where material, EU law rights and may be granted if there is a risk of such breach. If such breach or risk of breach is properly described as highest priority, there is no problem. But the test expressed in R(G) must be followed.
In considering factual complexity, paragraph 22 requires caseworkers to consider whether the case turns on issues of fact that are within the applicant’s knowledge. The volume of evidence, whether expert evidence needs to be considered and whether key issues of fact have already been dealt with in previous proceedings is also relevant. That an applicant has knowledge of factual issues on which the case turns is not a satisfactory test, since, if there is an issue, cross examination of the other side will be likely to be crucial. Overall, I think the indication still suggests that legal assistance should be limited to cases which are of the highest priority and so there is a high hurdle to be surmounted by an applicant.
Legal Help is dealt with in paragraph 39. This provides:-
“Where an individual makes an application for Legal Help alone, caseworkers should consider particularly carefully whether the Section 10(3) criteria are met. It will not be sufficient that such assistance is merely helpful for the presentation of the case. The failure to provide Legal Help will in itself not usually amount to a breach of ECHR or enforceable EU rights to legal aid. In particular, where the source of the obligation to provide legal aid is Article 6(1), it should be recalled that the obligation can only arise where there is a ‘determination of an individuals civil rights and obligations’ and caseworkers should consider whether an application for Legal Help alone does in fact relate to such a determination”.
The guidance does not deal with Article 8 albeit the court in R(G) made it clear that the procedural requirements inherent in Article 8 are essentially the same as those in Article 6(1). Effective access required to protect Article 8 rights is needed and that means that legal aid is required to ensure that there is such access and it is fair. Thus the approach set out in paragraph 39 would seem to be applicable where article 8 rights are concerned.
If followed literally, paragraph 39 would seem to be intended to mean that Legal Help would not be available in circumstances where an applicant wants to know whether his case does merit legal assistance. That is the gap in the scheme to which I have referred. I think the guidance is too limiting and fails to recognise that without Legal Help there may well be a real risk that lack of further legal assistance will breach Convention or EU rights.
In paragraph 44, the Guidance under the heading “Private Family Law” identifies some particularly relevant considerations:-
“◦ In relation to the complexity of the proceedings caseworkers should take into account that large number of litigants in England and Wales represent themselves in family proceedings every year.
◦ In relation to legal aid and factual complexity; for example, does the case involve unusually complex questions of trust law?
◦ What support (other than legal representation) is the applicant likely to receive? Caseworkers should take into account that judges are used to dealing with unrepresented parties in family proceedings and the court may be supported by for example CAFCASS in reaching a decision.”
It is not surprising in the light of this that the concerns of family judges to which I have already referred have arisen. The reality is that there is a limit to the extent to which it is proper for a judge to assist one party to litigation and if there is either factual, legal or procedural complexity it is difficult to see how an unrepresented party who will inevitably be likely not to be able to approach the matter objectively can have a fair hearing. If there are factual issues to be determined, evidence may be needed, whether medical or expert or other evidence, and the court in adversarial proceedings has no power to obtain such evidence. No doubt some litigants who would not meet the means test for legal aid will choose to represent themselves, but that is not a relevant consideration in deciding on an application by one who cannot afford legal assistance. The belief that because courts and tribunals have to deal with litigants in person legal representation can be refused is one which must be very carefully applied. It should only be used to refuse an application if the issues are truly relatively straightforward.
Reference has been made on the claimant’s behalf to cases in which the LAA has refused to grant legal aid when a judge seized of the material proceedings has requested it because otherwise a fair hearing will not take place. Obviously, the means test must be met and that might justify refusal. But it is difficult to see that save in a rare case to fail to comply with the judge’s request would be justified. It is not generally appropriate for a caseworker who is not apprised of the full circumstances to second guess the judge’s view. There must be a very good reason indeed for such a refusal.
The OS has particular concerns for patients, namely persons lacking mental capacity, and children who cannot engage in litigation without a litigation friend. He is a litigation friend of last resort in the sense that he will act only where no other litigation friend can be found. He will not, save in rare cases, himself conduct litigation and needs to have external funding. His concerns not only relate to cases in which he has acted as a litigation friend, but more generally that the scheme fails to meet the needs of those who lack capacity. It must be obvious that the difficulties in dealing with the prescribed forms and in making applications apply with greater force where children or adults who lack capacity are concerned. The response given is that a litigation friend can conduct the litigation and can apply for ECF. Equally, it is said that a litigation friend can conduct a case and so can be expected to be treated in the same way as would a litigant who had capacity. The evidence from Mr Bryant, the head of ECF determinations in the LAA, is that the ECF team does not expect litigation friends to conduct the litigation as advocates, but they step into the protected person’s shoes. The same point is made by the policy manager in the Ministry of Justice’s legal aid policy team, Mr Holmes, in his statement.
There is a powerful disincentive for a litigation friend to act since he or she undertakes not only to pay the protected persons costs but any costs that the court may order to be paid by the protected person. While the litigation friend will expect to recover from the protected person such costs, that is unlikely to be realistic when the protected person lacks means and so could be financially eligible for legal aid. Equally, a litigation friend is under a duty to act always in the protected person’s best interests and those may not be in accordance with the protected person’s views, albeit those views must always be put to the court. Thus in many cases it would be inappropriate for a family member (for example a parent of a child) to act as a litigation friend since there may be a need for objectivity which could not be met. Further, McKenzie friends cannot be used. It follows that in many cases involving impecunious children or adults who lack capacity there will be real difficulties in finding a litigation friend prepared to act having regard in particular to liability for costs. Thus the OS may have to act if approached. He will not normally be able to act for an impecunious individual, unless, absent a CFA or a costs undertaking from the opposing party, there is legal aid.