England: High Court judge rules legal aid scheme for vulnerable claimants is failing them

Mr Justice Collins made the ruling in a test case brought on behalf a blind man with cognitive impairments and comes after complaints from lawyers about the adequacy of the Legal Aid Agency’s (LAA) last resort funding scheme.

The LAA is an executive agency of the Ministry of Justice (MoJ).

Exceptional funding is meant to help people whose rights under theEuropean Convention on Human Rights would likely be breached in the absence of legal aid.

In his ruling the judge said: “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.”

On the increase in litigants in person he said: “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.’”

Mr Justice Collins granted the LAA and the Lord Chancellor, Michael Gove, permission to appeal the ruling.

Government lawyers assured him, however, that his ruling would be put into effect pending an appeal.

The judge also noted the application forms used for exceptional funding for legal aid were “far too complex” to be filled in without the help of a lawyer and called for simpler forms to be introduced.

He also criticised the “merits test” currently in place which applicants require to pass before being granted legal help, saying: “The rigidity of the merits test and the manner in which it is applied are in my judgment wholly unsatisfactory. They are not reasonable. 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.”

The case was brought on behalf of a Nigerian man known as “IS” by the Official Solicitor of England and Wales after he was refused exceptional funding by the Home Office.

He won his case but the Official Solicitor decided to continue the legal action as a result of concerns the scheme was not dealing with claims from those who lacked capacity properly.

The judge said: “The importance of the issues raised in this claim has justified its continuation in what in effect amounts to a test case.”