By Emma Marshall
In response to some of the difficulties that individuals face in accessing Exceptional Case Funding for legal aid, Public Law Project conducted research about the role that university law clinics play in improving access to the scheme. The research finds that whilst there are some limitations for Exceptional Case Funding clinics, overall they offer potential for significant community benefits, as well as opportunities for student learning.
When the Legal Aid, Sentencing and Punishment of Offenders Act 2012 (LASPO) came into effect in 2013, the Government’s expectation was that where categories of civil law had been cut from scope, Exceptional Case Funding (ECF) would act as a safety net to ensure those most in need would still be able to access legal advice and assistance. Whilst the number of applications – and notably, successful applications – has increased since 2013, access to the scheme is still relatively limited. In some regions of the UK – and in some areas of the law – the availability of ECF in practice is almost non-existent.
Barriers to ECF
Legal aid providers and members of the public can apply for ECF using the forms provided on the Ministry of Justice website, but there are two main problems with this. First, many legal aid providers have very limited capacity to complete ECF applications on behalf of potential clients. ECF applications can take a significant amount of time to complete, as documents must be gathered, detailed grounds for the application must be drafted and a merit and means assessment must be completed. ECF applications require a substantial amount of work to be completed without any guarantee that payment will be provided, as providers are only paid for their work retrospectively if the application is successful.
Second, whilst individuals can – in theory – make applications themselves, most members of the general public will not know when they have a right to legal aid, and the Legal Aid Agency website does not provide clear signposting to the scheme. Completing an ECF application requires some understanding of how the facts of a case relate to the law, and putting together the evidence can be complex and time consuming. Some potential applicants face additional barriers such as language limitations or learning disabilities, and the people who are most likely to have difficulties compiling an ECF application are also those who may be most likely to find it difficult to represent themselves.
Researching ECF and the work of university law clinics
The Public Law Project (PLP) carried out research in collaboration with the University of Exeter between September 2017 and February 2018, and has recently compiled the findings to demonstrate the opportunities, risks and limitations for university law schools in setting up ECF clinics. The findings are based on observations of setting up an ECF clinic at the University of Exeter and conversations with other universities running similar projects in England and Wales.
Setting up an ECF clinic
The research found that the main considerations for university law schools when developing ECF clinics are: the location of the project (particularly in terms of referral agencies and the availability of legal aid providers); the scope and scale of the project (the areas of law covered and how many referrals can reasonably be managed); the regulatory frameworks that govern the work of university law clinics; the training and supervision arrangements for student volunteers; capacity issues and the management of resources; and, the social and pedagogical value that ECF applications can provide for students and the wider community.
One potential limitation for ECF clinics is the issue of the administration of the ECF scheme itself. The amount of time and technical expertise necessary to draft and submit an ECF application to the Legal Aid Agency means that there must be sufficient training and support in place for students. Also, the delays faced by individual applicants and rates of initial refusal may add significantly to the workload of staff and students when applications need to be chased up or decisions challenged.
Improving access to ECF through university law clinics
Overall, the opportunities that ECF projects offer for improving access to legal aid outweigh the limitations. University law clinics can help to improve access to legal aid by assisting individuals to make ECF applications to the Legal Aid Agency, whilst simultaneously raising awareness of the scheme and providing students with practical experience of the legal aid system. Giving students the opportunity to engage with the issues around access to legal aid – and how to improve access – is pedagogically important from an access to justice perspective. Students can assist with ECF applications by putting their developing legal knowledge and skills to use, and members of the wider community are able to request assistance with applications that they would otherwise find difficult to compile themselves. Finally, where access to the ECF scheme is otherwise limited, universities as research institutions have an important role to play in gathering information and reporting on the operation of the ECF scheme.
Further information can be found on the PLP website www.publiclawproject.org.uk, including the full findings from the ECF clinic research in the report Exceptional Case Funding Clinics in University Law Schools: A study into the feasibility of extending access to legal aid through clinical legal education programmes. PLP is keen to hear from universities that are interested in developing ECF projects and that may benefit from training and support.
About the author:
Emma Marshall is a Research Fellow at Public Law Project and a PhD candidate at the University of Exeter.
 In the financial year 2013/14, of the 1,316 non-inquest applications for ECF received by the Legal Aid Agency, just 16 were granted. In 2016/17, this had risen to 816 grants from 1,591 applications. Ministry of Justice, ‘Legal Aid statistics England and Wales tables July to September 2017’ (Ministry of Justice, 14 December 2017) https://www.gov.uk/government/statistics/legal-aid-statistics-july-to-september-2017 accessed 14 March 2018
 PLP, ‘Written evidence of the public law project to the joint committee on human rights’ inquiry into human rights: attitudes to enforcement’ (Public Law Project, 13 February 2018) <http://www.publiclawproject.org.uk/data/resources/275/Written-submission-of-PLP-to-JCHR-inquiry-on-attitudes-to-human-rights-enforcement.pdf> accessed 14 March 2018