The exceptional case funding scheme, which helps those who fail to secure legal aid for civil matters, is lawful, the Court of Appeal has ruled.
Lord Justice Laws overturned an earlier ruling by Mr Justice Collins that the scheme was complex, rigid and unlawful as it gave rise “to an unacceptable risk that an individual will not be able to obtain legal aid where failure to provide it would be a breach of that individual’s rights”.
The scheme was intended to be a safety net for claimants who fell through the gaps after the Legal Aid, Sentencing and Punishment of Offenders Act 2012 (LASPO) came into force. However, there has been a low take-up so far. The Ministry of Justice expected about 6,000 applications to be made each year but last year only 1,172 applications were made and 226 granted.
In The Director of Legal Aid Casework v IS [2016] EWCA Civ 464, Laws LJ acknowledged there had been “troubling” difficulties with the scheme but said: “The learning curve will continue.”
He added: “No doubt the Legal Aid Agency and the Lord Chancellor will be astute to look for improvements, and will do so on a continuing basis.”
Dissenting, Lord Justice Briggs said: “In my judgment the defects in the procedures for applying for [the scheme] in the system in place at the time of the hearing before Collins J were systematic and inherent, to the extent that rendered the scheme inherently unfair, so that I would have been disposed to dismiss this appeal.”
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