Problems have arisen in that the LAA has in a number of cases required the lack of capacity for an adult to be established. It is said that evidence is not now requested and cases in which that request was made occurred in the early days and are not to be repeated. Nevertheless, there have been instances when information perhaps in the form of existing reports has been requested. It seems somewhat improbable that an individual would falsely assert a lack of capacity but no doubt that could occur. I was told that if the OS were acting no issue would be raised about capacity. However, it will often be necessary to have some medical evidence and that must be paid for. Furthermore, solicitors must be available to act. The defendants say that the OS’s concerns that protected persons cannot be expected to make applications themselves is based on the incorrect assumption that solicitors are unwilling to make such applications. The evidence before me as I have said shows that it is no assumption but entirely correct.
Before a directions hearing which I heard on 15 April 2015, the claimant was contending that the first defendant was deliberately setting out to ensure that as few applications succeeded as possible. Thus bad faith was raised: There had been a directions hearing before Sales J in July 2014 in which inter alia he ordered disclosure of the LAA training material. There was a considerable degree of argument about the proper disclosure; some of the documentary material was redacted. I am pleased to say that I persuaded the claimant to abandon the contention of bad faith. It seemed to me that it was both unnecessary and inflammatory because if the way in which the ECF was dealt with was unlawful, the reason why that was so was immaterial. It would obviously have lengthened the hearing since evidence would have had to be examined to no good purpose. In any event, it would have taken powerful and cogent evidence for me to have found bad faith. The training material has not been relied on since it is equally immaterial for my decision.
A further concern raised is the lack of an adequate system to deal with urgent applications. For in-scope applications, those which are urgent are to be dealt with in 48 hours and full merits and means forms will be required only if the emergency certificate is granted. I have already noted that regulation 66(3) of the Procedure Regulations disapplies this urgent case procedure for ECF applications. It is difficult to understand the reason for this since the need for urgent assistance will be the same whether or not the case is within scope. The LAA says that if it agrees that the case is urgent it will be prioritised. The normal time for dealing with an application is 20 days but an urgent application will be put to the head of the queue.
I have already referred to the reference to urgent cases in heading B of the ECF form. Mr Bryant says that urgency is assessed in the round, taking into account matters such as the nature and importance of imminent hearings or deadlines and not just, for example, how soon a hearing may be. Since as I have said the needs of the applicant for ECF are the same as those for an applicant for in-scope legal aid in receiving urgent assistance, it seems to me that the absence of the possibility of obtaining an emergency certificate is not reasonable. The urgent procedure is not satisfactory since it requires in effect a full application to be approved rather then the possibility of emergency funding. The provider will have to take the chance of appearing without payment.
I have not set out in any detail in this judgment the cases which have been referred to in the witness statements which have identified the difficulties to which I have referred. Mistakes have been made as the LAA accepts; mistakes do not of themselves show that the system is defective. To go through them all would be to extend this judgment unacceptably. The Scott schedule provides all the necessary information if anyone should wish to examine it. But I am entirely satisfied that the scheme is not, as it is operated, meeting its need to ensure that an unrepresented litigant can present his or her case effectively and without obvious unfairness. That extends to the need to ensure that he or she has access to assistance which may be needed, as in IS’s case, to make representations to the relevant authority to achieve a particular purpose. The same need exists as for hearings before a court or tribunal.
The main problem lies in the forms which are prescribed. They are far too complicated and are not at all helpful to lay persons. Providers have difficulties with them and the small level of grant has unquestionably, on the evidence which has not shown to be erroneous, led to the unwillingness of providers to take on clients who need to apply for ECF. The scheme is not properly providing the safety net which s.10 is supposed to provide. It is to be noted that it was anticipated that some 5,000 to 7,000 applications would be made in a year. The actual rate was a fraction of that. The defendants say that the figures they relied on were only estimates for planning purposes. In a letter of 20 August 2013 the MoJ stated that the figures were based on the number of grants estimated in the LASPO consultation exercise, namely 3,700. It is significant that the scheme has not produced anything like that number of grants, let alone applications. Furthermore, as the OS has indicated and a number of applications dealt with in the statements confirm, the hurdle erected for those who lack capacity is far too high. Those who are unable to pay for legal assistance are suffering in a way that Parliament cannot have intended.
I have to consider the second ground relied on by Mr Hermer. This is in essence an attack on the manner in which merits are to be dealt with in accordance with the Merits Criteria Regulations. Section 11 of the Act identifies a list of factors and the Lord Chancellor must consider the extent to which the criteria to be set out in regulations should reflect those factors. He is given a discretion: it is not a question of necessarily applying each of the factors identified. The manner in which the factors are applied is also left to the regulations to set out. I have already set out the provisions of s11 in paragraph 8 above.
There is no doubt that in deciding whether or not to grant legal aid the State is entitled to apply merits criteria. This has been upheld by the ECtHR in a number of cases. It is clear that legal aid is not required to ensure that there is no breach of Article 6(1) or 8 of the Convention in all cases. Means and merits tests can be required. In addition, the ECtHR has upheld the imposition of a cost-benefit test. Mr Chamberlain has submitted that the ECtHR has gone so far as to uphold the application of a merits test even where to refuse legal aid would prevent the individual from access to a court as would arise, for example, for one who lacked capacity and could find no litigation friend prepared to act or the OS could not help unless legal aid were granted.
Mr Chamberlain in addition submitted that it was for the State to decide how the test should be applied providing only that arbitrariness was avoided. Further, there was no case before the ECtHR which decided that there must be discretion to disapply the merits test on a case by case basis. Either an individual qualified or he did not. Any system designed must involve a judgment to be made by the body which is able to grant or refuse legal aid and so there is a discretion to be exercised on the particular circumstances of a particular case, as the Guidance makes clear.
In Martin v. Legal Services Commission  EWHC 1786 (Admin), Ouseley J helpfully summarised the ECtHR jurisprudence. That case challenged a refusal to grant legal aid for a negligence claim on the basis that the cost-benefit test was not met. The key conclusion is that a refusal of legal aid on the grounds that a case lacked reasonable prospect of success, through a fair and non-arbitrary decision making process would not be a denial of access to the courts, even though it would mean that a claimant would have to bring proceedings himself or seek other assistance which might not be available.
I should refer to a few of the ECtHR cases since the court has not always been entirely consistent in its formulation of the merits test. In Mak v. UK (2010) 54 EHRR 14 the applicant had originally been granted legal aid for a claim for damages against a local authority which had taken custody of his child on the basis of what was said to have been a false allegation of child abuse. Legal aid was withdrawn because the likely costs were disproportionate to the value of the claim. The merits test then in force was set by s.15(2) of the Legal Aid Act 1988 which required an applicant to have reasonable grounds for taking, defending or being a party to legal proceedings. The test set out in the Merits Regulations is far more prescriptive than that under the 1988 Act. The court said at paragraph 45:-
“The Court further observes that the legal aid system in the UK offers individuals substantial guarantees to protect them from arbitrariness. In particular, the Court has regard to the fact that applicants who are refused legal aid or whose certificates are discharged or withdrawn can appeal to an Independent Funding Review Committee. If they are not satisfied with the Committee’s decision, they can apply for judicial review.”
Accordingly, the court decided that even if the withdrawal of legal aid constituted a restriction on the applicant’s access to the court, it was legitimate and proportionate. Applicants for ECF have no right of appeal, albeit judicial review is a possible remedy. One concern raised by Mr Hermer was the number of cases in which legal aid was eventually granted but only after threat of a claim for judicial review. That is an increase in cost, particularly as the claimant may receive legal aid to challenge the refusal of ECF. While I do not suggest that the changes made by the LASPO Act produce arbitrariness, the situation is less satisfactory than that considered in Mak under the 1988 Act.
In Aerts v. Belguim (2000) 29 EHRR 50, the Legal Aid Board of the Court of Cassation had refused to grant legal aid to the applicant, a mental patient, who sought to challenge the lawfulness of his detention on the ground that his appeal was not well-founded. Belgian law required that there be representation by counsel before the Court of Cassation. The right to liberty which was at stake was a civil right so that Article 6(1) applied. The court concluded (paragraph 60):-
“It was not for the Legal Aid Board to assess the proposed appeal’s prospect of success; it was for the Court of Cassation to determine the issue. By refusing the application on the ground that the appeal did not that time (sic) appear to be well-founded, the Legal Aid Board impaired the very essence of Mr Aert’s right to a tribunal. There has accordingly been a breach of Article 6(1).”
The court thus did not accept that a merits test applied by a body, albeit in the Court of Cassation, which was not judicial could properly refuse legal aid when the effect of refusal was to disable the applicant from appearing before the court.
In Gnahore v. France (2002) 34 EHRR 967 a similar application to that in Aerts was made following refusal of legal aid for an appeal to the French Court of Cassation. The relevant procedural rules did not require that an appellant must be represented by counsel and so the court distinguished Aerts because “there is no doubt that the fact that M.Aerts had to be represented by counsel was decisive.” Apart from this, the French system provided for a simplified process for litigants in person. The general rule that funds for legal aid should only be allocated to those whose appeals had a reasonable chance of success was reiterated. It is also important to keep in mind the system which the court set out in paragraph 41. It said:-
“Furthermore, the system instituted by the French legislature provides substantial guarantees for individuals of a kind to protect them from arbitrary action. On the one hand, the Legal Aid Office established within the Cour de Cassation is presided over by a magistrate from the court and also includes its chief registrar, two members chosen by the court, two officials, and two advocates before the Council of State and the Cour de Cassation, as well as a member appointed in the name of litigants; on the other hand, rejection decisions can be the object of an application to the First President of the Cour de Cassation.”
Thus there was ample protection provided by means of a judicial decision if legal aid was to be refused.
Mr Chamberlain relied on Del Sol v. France (2002) 35 EHRR 1281 which, he submitted, showed a departure from Aerts. The applicant in Del Sol was alleging a breach of Article 6(1) in a refusal to grant her legal aid for an appeal to the Court of Cassation. The court by a majority again distinguished Aerts because of the French system the details of which I have already referred to as set out in Gnahore. Mr Chamberlain relied on observations of the minority judges who pointed out that, unlike Gnahore, in Del Sol the applicant was not permitted to appear in person before the Cour de Cassation so that the very essence of the right was infringed. The two dissentients said at paragraph 0-12:-
“The Court’s finding that there has been no violation of Article 6 of the Convention therefore quite clearly marks a departure from its previous case law. We find it surprising that a Chamber should thus decline to follow two previous decisions; as such a major change to case law is within the sole province of the Grand Chamber.”
In Eckardt v. Germany (2007) 54 EHRR 52 the applicant, a serving prisoner, sought to complain to the Constitutional Court that he had been the subject of a wrong decision by the Thuringia Court of Appeal in the rejection of his claim for damages for being kept in conditions which in essence breached Article 3 of the ECHR. The relevant provision of the Code of Civil Procedure stated that if a party could not afford representation he was to be granted legal aid ‘if the intended legal action offers sufficient prospects of success and does not appear wanton”. Representation by counsel may in certain cases be compulsory, and “it is the Court having jurisdiction to deal with the intended action itself which will be called to decide on matters for legal aid. An appeal lies against a decision refusing legal aid”. (Paragraph 3 on page 55).
The court (p56) stated that the correct approach was as follows:-
“The question whether the provision of legal aid is necessary for a fair hearing must be determined on the basis of the particular facts and circumstances of each case. It will depend, inter alia, upon the importance of what is at stake for the applicant in the proceedings, the complexity of the relevant law and procedure, the question whether legal representation is compulsory and the applicant’s capacity to represent himself effectively. The right of access to court is, however, not absolute and may be subject to restrictions, provided that those pursue a legitimate aim and are proportionate. It may notably be acceptable to impose conditions on the grant of legal aid based, inter alia, on the financial situation of the litigant or his or her prospects of success in the proceedings….provided that the legal aid system offers individuals substantial guarantees to protect them from arbitrariness (compare Gnahore, Del Sol).”
As the court observed on p58, the German legal aid system offered individuals substantial guarantees to protect them from arbitrariness. It said:-
“It is the Court having jurisdiction to deal with the planned action itself which decides on motions for legal aid and an appeal lies against its decision refusing legal aid.”
The system for ECF does not contain the guarantees referred to in Eckardt. The court was able to distinguish Aerts in Del Sol because of the involvement of judges of the court in considering the grant of legal aid and a right of appeal to a judicial body against a refusal. I see no reason to distinguish Aerts where, as here, there is no judicial input into the decision making process and no right of appeal. This applies only if there would be an infringement of the very essence of the right of access to a court or tribunal. That would be the position in the case if an individual who lacked capacity, could find no litigation friend willing to act and the OS could not himself act as litigation friend unless legal aid were granted.
The right to seek judicial review (which is in scope) is not an entirely satisfactory remedy since it is only possible to quash a refusal if an error of law is established. Essentially, in most cases it would be necessary to show that the decision was irrational in Wednesbury terms. In my view, the system is defective in failing to provide for a right of appeal to a judicial person against a refusal where the result would be an infringement of the very essence of the right of access to a court.
It is important to bear in mind that whether the prospects of success are better than borderline is not the only material consideration nor can it always prevail. The case of Reis, one of those dealt with in R(G), is in point: Mr Reis was a Portuguese national who was to be deported. The issue turned on whether he was entitled to enhanced protection because of his length of residence here. There was considerable complexity in that issue albeit chances of success were prima facie not better than even. Mr Hermer gave the example of a father who was being deprived of access to his children because of an allegation of physical abuse. Assuming he had learning difficulties and could not reasonably be expected to conduct his case in person, the overwhelming importance of the case for him and for his children could not properly justify refusal of legal aid simply because the chances of success were believed to be less than even.
Even if refusal of legal aid meant that a person lacking capacity would not be able to conduct his case, merits would not be irrelevant. As Mr Chamberlain submitted, a manifestly unwinnable case should justify refusal of legal aid.
There are in my view two difficulties in the way the merits test has been applied. First, the requirement that in all cases there must be a even or greater than even chance of success is unreasonable. Secondly, the manner in which the LAA has assessed the prospects of success has been erroneous. The whole point of representation is that it will produce the chance of success which without representation will not exist. If a case involves issues of fact which will depending on the court’s findings determine the outcome, it must be obvious that the ability to challenge apparently unfavourable material and to cross examine adverse witnesses effectively may turn the case in a party’s favour. Accordingly, what has to be assessed is not what the present material when untested may indicate but whether if competent cross examination or legal submissions are made the result may be favourable. It is not for the LAA to carry out the exercise which the court will carry out, in effect prejudging the very issue which will be determined by the court. I recognise that there will be cases which it will be possible to say that whatever may be achieved by competent representation the result is likely to be unfavourable. The lengthy and detailed refusals which have been exhibited by the various witnesses have tended to carry out what I regard as the impermissible approach. The removal of the borderline cases from those that can succeed on merits grounds seems to me to be unreasonable.
Mr Chamberlain has relied on the observation of the court in R(G) that “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”. That may be true of the cases in which a breach of Article 6(1) or the procedural requirements of Article 8 were considered. But I do not think the court was making a judgment which would apply to all applications. As was said, the circumstances of each case will be determinative and there can in my view be no doubt that the way in which merits have been approached has been flawed.
Ground 3 alleges that there was a breach of s149 of the Equality Act 2010. Section 149(1)(b) requires a public authority in the exercise of its functions to “have due regard to the need to advance equality of opportunity between persons who share a relevant protected characteristic and persons who do not share it”.
It is important to bear in mind that the obligation in s.149 is not to achieve a result but to have due regard to the material need. While the duty is continuing, as Elias LJ observed in R(Greenwich Community Law Centre) v. LB Greenwich  EWCA Civ 496, at paragraph 35:-
“The purpose of the duty is to require consideration of equality implications at the time the policy is drafted. The fact that it is a continuing duty does not mean that there has to be a further detailed consideration when the general framework is made concrete or whenever there are minor changes of detail. It would make administration intolerable and grossly inefficient if every aspect of policy left to an officer’s discretion had automatically to be returned for further consideration of the equality implications.”
In Bracking v. Secretary of State for Work and Pensions  EWCA (Civ) 1345 McCombe LJ helpfully set out the points which are required by s.149. All I think I need say is that provided the court is satisfied that there has been a rigorous consideration of the duty so that there is a proper appreciation of the potential impact of the policy on equality objectives and the desirability of protecting them, it is for the decision maker to decide how much weight should be given to various factors informing the policy.
The second defendant produced an Equality Impact Assessment (EIA) in May 2012. It is thus clear that the necessary due regard was had. Insofar as the primary legislation set up the scheme and the various criteria were set out in Regulations, the EIA had to take that into account. But the claimant’s case focuses on what is said to be an error in the EIA which renders its assessment unreliable. The paragraph which is relied on reads as follows:-
“Any risk that providers might as a matter of policy decline to take on applications by people with protected characteristics as a result of perceived increased burdens potentially associated with such applications should in our view be mitigated by the existing legal duties on providers with regard to equality, for example the requirement under section 29 of the Equality Act 2010 that a service provider must not discriminate in the provision of services”.
Mr Hermer submits that this is a fundamental error and a fatal one. But it is necessary to put the paragraph in context. In the summary to the EIA, the risk of providers failing to take a case which would have been granted ECF because of the extra cost to be incurred was referred to. Consideration was given to whether payment should be made for additional work required for making an application when the client had a protected status. This was rejected on the basis that “for the most part providers will make correct judgments in terms of putting forward applications on behalf of clients with a strong case for ECF and refusing to do so for those that would not be granted it”. It was believed that the risk would reduce over time as providers became aware of which cases were likely to succeed. To allow payment for unsuccessful applications would, it was said, encourage applications as a matter of routine.
As the evidence in this case demonstrates, the expectation set out has not materialised. The opposite is the case due to the very small number of successful applications. The refusal to take on clients because of an inability to take the risk of not being paid cannot amount to a breach of the s.29 duty. But a policy decision independently of any good reason for it not to take on clients who were disabled would not be lawful. Thus the suggestion that the s.29 duty would mitigate the risk of a failure by providers to take on disabled clients has not applied in the circumstances which resulted from the manner in which the LAA has dealt with ECF applications. I do not regard it as in any way fatal to the defendants as Mr Hermer submitted.
In any event, it seems to me to be clear that due regard was had as required by s.149. Whether the conclusions were all correct and wrong weight was given to particular factors is nothing to the point. Mr Hermer recognised that this ground would not on its own lead to a favourable decision. In my view it does not prevail.
As will become apparent, I think that there must be changes to the scheme. The ECF application forms are far too complex for applicants in person. Separate forms should be provided. Indeed, overall the test set out in R(G) can be set out in the form and applicants or providers can then be required to give full details of the need for legal assistance by producing all existing material relevant to the application. As I indicated, what is put on the website can surely be put on a form. Consideration must be given to provision of Legal Help to enable providers to do work to see whether a client has a case which should be granted legal assistance because it qualifies within s.10 of the Act. No doubt the LAA will be entitled to decide whether any such application is reasonable since a provider must satisfy himself that there is a possible need for legal assistance on the basis of preliminary information given by the client and any relevant documents provided. Legal Help does not require a prospect of success test.
The rigidity of the merits test and the manner in which it is applied are in my judgment wholly unsatisfactory. They are not reasonable.
As will be clear, I am satisfied that the scheme as operated is not providing the safety net promised by Ministers and is not in accordance with s.10 in that it does not ensure that applicants’ human rights are not breached or are not likely to be breached. There is a further defect in the failure to have any right of appeal to a judicial body where an individual who lacks capacity will otherwise be unable to access a court or tribunal.
I am conscious that I have not gone through the enormous quantity of evidence in great detail. To have done so would have resulted in a judgment which is more unwieldy than this. I have of course considered it all and have, as I said, been assisted by the Scott schedules. I am immensely grateful to counsel on both sides for their assistance.
I shall hear counsel on what form of relief I should grant.