Court of Appeal confirms earlier High Court ruling that the Lord Chancellor’s guidance on the scheme is unlawful.

In a judgment handed down this morning the Court of Appeal considered six cases in which the High Court had ruled that the Director of Legal Aid Casework had acted unlawfully in refusing applications for “exceptional” legal aid.

PLP acted for ‘IS’ who is blind, has profound cognitive impairment and is unable to care for himself. IS lacks litigation capacity and is represented through the Official Solicitor. IS has lived in the UK for at least thirteen years.

Exceptional legal aid had been sought to enable IS to apply to the Home Office to regularise his immigration position and thereby qualify for mainstream community care and health services.

The Director of Legal Aid Casework had repeatedly refused his application by reference to the Lord Chancellor’s guidance and eventually the Official Solicitor had instructed PLP to apply for judicial review of that refusal. In the High Court, and initially on appeal the Lord Chancellor and the Director of Legal Aid Casework both sought to maintain that IS was not entitled to exceptional legal aid.

The Court of Appeal’s judgment records the Appellants’ late concession that, in fact, he was so entitled. The Court observed

“It is impossible to see how a man suffering from his disabilities could have had any meaningful involvement in the decision – making process without the benefit of legal representation.” (Paragraph 80).

Having considered the law arising in the context of the other cases, and the Appellants’ concession in IS the Court went on to confirm the High Court’s judgment that the Lord Chancellor’s Guidance was unlawful, finding that it misstated the law in various respects. The Court held that the Lord Chancellor had set the threshold for legal aid too high,
wrongly indicating to caseworkers that legal aid should be granted “only in rare and extreme cases.” (Paragraphs 45 – 46 & 56).

Jo Hickman, Head of Casework at PLP, said:

“We are concerned that the exceptional funding scheme has not in practice been operating as the justice safety net that Parliament intended it should be, particularly for the most vulnerable of applicants. This judgment goes some way towards meeting that concern.”

For further information contact Jo Hickman on or 020 7843 1267.


1.The Public Law Project (PLP) is an independent, national legal charity which aims
to improve access to justice for those whose access is restricted by poverty, discrimination or other similar barriers. The residence test case was brought in furtherance of PLP’s charitable objectives.

2. The Legal Aid Sentencing and Punishment of Offenders Act 2012 (LASPO) removed various categories of law from the scope of the legal aid scheme.  However s.10 of LASPO provided for “exceptional” funding to be available where necessary to prevent a breach of an applicant’s rights.

3. The Lord Chancellor issued the Legal Aid Agency with guidance on determining
such applications:

4.The High Court judgment in this case was given by Mr Justice Collins on 13 June 2014:

5. IS’s counsel were Phillippa Kaufmann QC, Chris Buttler and Ben Silverstone all of Matrix Chambers.

6. The Official Solicitor is an independent statutory office holder who acts as last resort litigation friend for parties who lack the mental capacity to conduct their own proceedings.