IS v The Director of Legal Aid Casework & Anor

IS v The Director of Legal Aid Casework & Anor

The ECF scheme as operated is not providing the safety net required by s.10 LASPO, is not ensuring that applicants' human rights are not breached or likely to be breached, and is unlawfully inaccessible and rigid, particularly for vulnerable persons. The application forms are too complex, the merits test is unreasonably rigid, and the lack of a right of appeal to a judicial body where an individual lacks capacity is a further defect. The scheme fails to comply with the requirements of s.10 LASPO and does not adequately address the needs of those lacking capacity or advance equality of opportunity as required by the Equality Act.

Parties
Claimant: IS (by the Official Solicitor as Litigation Friend); 1st Defendant: The Director of Legal Aid Casework; 2nd Defendant: The Lord Chancellor
Jurisdiction
England and Wales
Judgment Date
15 July 2015
Procedural Posture
Judicial Review / Judgment After Full Hearing
Outcome
Claim allowed in part; scheme declared unlawful in its operation as described.
Legal Topics
Legal Aid, Access to Justice, Equality Act Compliance, Merits Test, Exceptional Case Funding, Article 6 ECHR, Article 8 ECHR, Disability Rights
Administrative Law Human Rights Law Civil Procedure Legal Aid Access to Justice Equality Act Compliance Merits Test Exceptional Case Funding +3 more

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Parties

IS (by the Official Solicitor as Litigation Friend)

Claimant

The Director of Legal Aid Casework

1st Defendant

The Lord Chancellor

2nd Defendant

Procedural Posture

Judicial Review / Judgment After Full Hearing

Legal Issues

  1. 1 Whether the operation of the Exceptional Case Funding (ECF) scheme under LASPO breaches applicants' rights under Articles 6 and 8 ECHR by being inaccessible or too restrictive, particularly for vulnerable persons lacking capacity.
  2. 2 Whether the merits test and application forms for ECF are unlawfully rigid and complex, preventing effective access to legal aid.
  3. 3 Whether the scheme fails to comply with Section 149 of the Equality Act 2010 by not advancing equality of opportunity for disabled persons.

Ratio Decidendi

The ECF scheme as operated is not providing the safety net required by s.10 LASPO, is not ensuring that applicants' human rights are not breached or likely to be breached, and is unlawfully inaccessible and rigid, particularly for vulnerable persons. The application forms are too complex, the merits test is unreasonably rigid, and the lack of a right of appeal to a judicial body where an individual lacks capacity is a further defect. The scheme fails to comply with the requirements of s.10 LASPO and does not adequately address the needs of those lacking capacity or advance equality of opportunity as required by the Equality Act.

Court Disposition

Claim allowed in part; scheme declared unlawful in its operation as described.

Orders

  • Declaration that the ECF scheme as operated is not in accordance with s.10 LASPO and is unlawful to the extent described in the judgment.
  • Direction that the scheme must be revised to provide accessible forms for applicants in person, a less rigid merits test, and provision for Legal Help to investigate potential claims.