Improving Exceptional Case Funding: Providers’ Perspectives
By Joe Tomlinson and Emma Marshall
When the Legal Aid, Sentencing and Punishment of Offenders Act 2012 (LASPO) came into effect, a new Exceptional Case Funding (ECF) scheme was introduced. ECF was intended to offer a ‘safety net’ to ensure that legal aid would still be available where the European Convention or European Union law rights of individuals would otherwise be breached. The need for such a safety net was acute in the context of the broad cuts to legal aid introduced under LASPO. Today, there remain major questions about the effectiveness of ECF, access to advice, and whether the safety net has holes.
Since 2013, the accessibility of the ECF scheme has been criticised by a range of actors, including professional bodies, legal professionals and the advice sector, academics, and human rights organisations. There have been a number of reports published highlighting issues with the ECF scheme, as well broader concerns about the impact of LASPO on the availability of legal advice and the practical implications for access to justice.
Over time, the Government has come to recognise some of the problems in the ECF system. After its initial introduction, there were some improvements to the ECF scheme, primarily as a response to litigation. Following the case of Gudanaviciene, the Lord Chancellor’s Guidance was amended and the Government amended the prospects of success test following the case of IS. Recently, in February 2019, The Post-Implementation Review (PIR) of LASPO was published alongside a document titled Legal Support: The Way Ahead, which set out plans by the Ministry of Justice to improve some aspects of legal aid, including the ECF scheme. The PIR found that the rising grant rates for ECF indicated the growing success of the scheme. However, it also acknowledged the concerns raised by stakeholders about the accessibility of the scheme and, in response to those concerns, outlined plans for improvement, including simplifying the application process, improving the timeliness of decision-making, and considering the introduction of a procedure for urgent applications.
The findings of the PIR indicated a need for further evidence on access to legal aid through the ECF scheme. An effective system relies on legal aid providers being able to access ECF for clients whose rights would otherwise be breached. But, as suggested in the PIR, there are indications that legal aid providers are deterred from making ECF applications or are otherwise reluctant. In the absence of providers willing to make applications, individuals may have to apply directly to the Legal Aid Agency, but they may face additional barriers in navigating the complex application process. Whilst the Ministry of Justice has committed to making some improvements, it is important to ensure that the changes go far enough to ensure the equitable accessibility of the ECF scheme.
With this context in mind, and with the aim of informing the planned improvements, we sought to develop an evidence base— through survey research—to address key gaps in understanding about the experience of legal aid providers using the ECF scheme, and the barriers that they face. Our findings are presented in this report, entitled Improving Exceptional Case Funding, which we are publishing today. The evidence set out in our report suggests that ECF processes need rethinking urgently but so does the role of ECF in the wider legal aid system.
As regards ECF processes, it is clear—as The Way Ahead appears to acknowledge—that the current process design is deterring providers from making applications. Taking meaningful steps to make processes simpler and quicker—and to communicate those changes—is essential. The Ministry of Justice has access to a far wider range of relevant data sources concerning ECF than external researchers and they should seek to draw upon all of this evidence to inform improvements. Providers responding to our survey indicated support for the planned improvements and also provided some concrete proposals which should be considered.
The evidence also suggests that wider reflection on the role of ECF in the legal aid system is necessary, including how it fits into the economic environment that legal aid providers find themselves operating within. For instance, the evidence we have reviewed prompts serious questions about whether Article 8 immigration cases ought to be brought back into scope for legal aid, given the volume of successful ECF applications in the immigration context. There are also questions around whether giving further powers to legal aid providers to grant ECF for controlled work would improve the operation of the scheme, particularly in areas where there is a high demand for ECF and the evidence indicates providers have a good understanding of the criteria for granting. Such reforms present an opportunity to remove the evident disincentives for applications and lower the LAA’s administrative burden, which is also a source of problems. Reducing the number of immigration applications which have to be processed by the ECF team (whether by bringing such cases back into scope or granting delegated powers) would free up resources to consider urgent or more complex applications, thus potentially reducing decision times. This kind of wider systems thinking is necessary to optimise the ECF system.
The key risk of The Way Ahead plan for ECF is that it results in superficial changes that make little difference to people who are in need of legal advice to effectively enforce their rights. The opportunity is for a range of systemic improvements that substantially improve access to essential legal advice. The evidence in this report provides guidance on how the latter outcome could be achieved.