Exceptional Funding Project

On 1 April 2013, major changes were made to the legal aid system in England and Wales by the Legal Aid, Sentencing and Punishment of Offenders Act 2012. As a result of these changes, many cases no longer ordinarily receive legal aid. Types of cases which continue to get legal aid include, for instance:

• Family cases where a local authority has applied to Court (for instance in care proceedings)
• Family cases such as divorce or custody disputes for a person who has suffered domestic violence, or where children are at risk of harm, and evidence is available to show this
• Claims for Judicial Review (except in some immigration cases)
• Claims for asylum

These are only examples. Some of the rules about which cases get legal aid are complicated. There is a more detailed list of cases which receive legal aid below, but to check whether your case is one that would get legal aid, you should contact a local solicitor dealing with that area of law. You can look up legal aid providers by area of law through the ‘find legal advice’ pages on gov.uk.

If you have a case for which legal aid is not normally available, the only way that you will be able to get legal aid is if you are granted exceptional case funding.

Exceptional funding will only be available to people whose human rights or European Union rights would be breached if they did not have legal aid (section 10 of the Legal Aid, Sentencing and Punishment of Offenders Act 2012). In general, this means that it would be in some way unfair or even impossible for a person to deal with a case themselves. That might be because the case is complicated, or because the person is less able to deal with it alone (for instance, they might suffer from a learning disability). It could also be because the case is so important to that person that it is not fair for that person to do the case themselves. A combination of these factors could also mean that funding is required to avoid a breach of that person’s rights.

Exceptional funding may also be available for inquests where the right to life under Article 2 of the European Convention on Human Rights is engaged. The criteria for being granted funding in inquest cases are different. For more detail on funding for inquests see the Government’s guidance and information about inquest funding for legal aid providers: this is not something that the Public Law Project are able to advise on, as inquests do not fall within PLP’s Exceptional Funding Project. You may want to contact Inquest for advice and assistance.

Solicitors are unable to grant exceptional funding themselves. This means that all applications for exceptional funding must be sent to the Exceptional Cases Team at the Legal Aid Agency using form CIV ECF1. Applications for exceptional funding should be accompanied by further relevant forms, which are the same forms you would use if applying for ordinary legal aid. Some information about the relevant forms and copies of them can be found on the Legal Aid Agency page on exceptional case funding. The application forms can be filled out by an applicant on their own, or by a legal representative. The Legal Aid Agency’s target time for responding to an initial application is 20 working days.The target time for responding to an urgent application is five working days. If an individual applies for exceptional funding without a legal representative, he or she should be provided with a decision on whether they will receive funding. This will only be possible where the Legal Aid Agency is provided with relevant information by the individual who is applying. The individual will then need to contact a the solicitors’ firm or organisation to represent them in their case. The firm or organisation will need to resubmit the legal aid forms to the Legal Aid Agency.

If an individual applies for exceptional funding without a legal representative, he or she should be provided with a decision on whether they will receive funding. This will only be possible where the Legal Aid Agency is provided with relevant information by the individual who is applying. The individual will then need to submit valid means form and any other relevant information through the solicitors’ firm or organisation which will represent them in their case.

If an application for exceptional funding is unsuccessful, the applicant can apply for an internal review of the refusal by submitting grounds of review and supporting documentation to the Legal Aid Agency. If the refusal of funding is upheld on the internal review, the only way of bringing a further challenge is by judicial review.

There is some further information on applying for exceptional case funding in the Legal Aid Agency’s provider pack.

Ever since Exceptional Case Funding was introduced in April 2013, PLP has been working to increase access the scheme.

• PLP has helped many individuals to apply to the Legal Aid Agency for Exceptional Funding, and has been successful in obtaining funding for many of them (including at the beginning of the scheme, when funding was only granted in less than 10 per cent of cases)
• PLP represented I.S., a person suffering from significant disabilities alongside other individuals in the case of Gudanaviciene v Director of Legal Aid Casework, which made clear that the test for when funding was required was much lower than the Government had claimed.
• PLP continued to represent I.S. in a legal challenge to the operation of the scheme on the basis that it was so hard to get funding that the scheme was being used unlawfully. PLP’s client won this case in the High Court (I.S. v Director of Legal Aid Casework [2015] EWHC 1965 (Admin)), where the Legal Aid Agency was severely criticised and its practices found unlawful. The Court of Appeal agreed with many of those criticisms but did not find the scheme unlawful ([2016] EWCA Civ 464)).
• PLP continues to offer training and support to organisations making exceptional funding applications. Training opportunities are listed on our events page.
• We are continuing to monitor experiences of the Exceptional Funding scheme and are keen to hear about your experiences, or if you are considering making a funding application. You can email exceptionalfunding@dev.publiclawproject.org.uk, or call our main number: 0207 843 1260.

If you are a legal aid provider or other organisation applying for funding on behalf of a client, and would like to discuss whether exceptional funding is suitable, or have questions about the process, likely outcomes or possible approaches, please contact us and we will do our best to provide support as quickly as we can. We have unique experience of the Exceptional Funding Scheme and are keen for this experience to be of use to others.

We also provide regular training for advice organisations and others on using the Exceptional Funding Scheme. Please check our Training & Events page for details of forthcoming seminars.

If you would like to tell PLP about any problems or successes you have had with the scheme, please let us know! We are keen to hear about others’ experiences and to provide support where we can.

We may also be able to assist if you or your client have been refused exceptional funding and you would like to challenge this through the courts.

If any of the above apply, please email exceptionalfunding@dev.publiclawproject.org.uk, or call us on 0207 843 1260.

We have two guides on ECF (with more to come) that may also be useful:

• How to get ECF in family law
• How to get legal aid ECF in Welfare Benefits cases

PLP is not able to take on individual cases for applications for exceptional case funding. However, depending on the sort of legal problem you have, we may be able to refer you to another organisation that can help. We may also be able to provide you with some support to enable you make an application yourself.

If you think that you may be eligible for exceptional case funding, you can use PLP’s guide to applying for ECF as an individualto help you apply.  Our guide can help you work out whether applying for ECF is something that you want to do, and will guide you through the steps that you need to make should you decide to make an application.

If you have questions about the application process that are not answered by our guide, we may be able to provide some one-off advice over the telephone. You can contact us by e-mail at exceptionalfunding@dev.publiclawproject.org.uk or call us on 0207 843 1260. 

If you are a woman who has experienced domestic or sexual violence or abuse and is seeking ECF for immigration or family proceedings, PLP may be able to refer you to Rights of Women for assistance in making an application for ECF. If this applies to you, please e-mail us at exceptionalfunding@dev.publiclawproject.org.uk or call us on 0207 843 1260.  

In order to be eligible for exceptional funding you need to check that legal aid is not ordinarily available in your case. Exceptional Case Funding is not available or necessary if legal aid is ordinarily available for your case. Legal aid is available  for various areas of law,subject to financial eligibility  These areas include:

• Community care
• Actions against public authorities
• Mental health and mental capacity
• Judicial review
• Special educational needs
• Asylum claims
• Immigration detention
• Discrimination
• Debt where the person’s home is at risk. This includes mortgage possession of the home, orders for sale of the home and involuntary bankruptcy where the person’s estate includes their home.
• Housing where the person’s home is at risk or the person is homeless. This includes possession of the home, eviction, disrepair in rented accommodation where the disrepair poses a serious risk to health or safety, homelessness assistance and anti-social behaviour cases.
• Public family law regarding the protection of children.
• Private family law where there is evidence of domestic violence or child abuse, child abduction cases, forced marriage protection cases and cases where a child is a party to the proceedings.
• Clinical negligence where a child suffers a neurological injury resulting in them being severely disabled during pregnancy, child birth or the postnatal period
• Immigration where there are issues of domestic violence, proceedings in the Special Immigration Appeals Commission or issues of human trafficking or slavery, servitude or forced labour.
• Welfare benefits, where there is an appeal to the First-tier Tribunal where the tribunal reviews its own decision because there has been an error of law or an appeal to the Upper Tribunal, Court of Appeal or Supreme Court on a point of law.

If your case falls into one of these areas, you may be eligible for legal aid and you should seek legal advice from a solicitor specialising in that area. This is not a complete list and you should check with a legal aid solicitor whether legal aid could be available in your case. You can identify solicitors in your area by using the search function on the Law Society’s ‘find a solicitor’ website and you can search for organisations which provide legal aid services through the gov.uk website.

In order to be eligible for legal aid you need to be able to show that you have good arguments in support of your case. The need for strong arguments differs depending on what sort of legal service you are seeking funding for. In order to receive legal advice and assistance from a solicitor you need to be able to show that it is reasonable for the government to provide you with legal aid and that the cost of providing you with legal advice and assistance is outweighed by the benefit you will gain from it. However, in order to get legal representation at a court or tribunal, you need to meet a higher threshold, generally that you are at least as likely to win your case as to lose it.

The Legal Aid Agency will only grant legal aid to people who do not have very much money. This means that you will have to provide information about your income, your savings and whether or not you own your home, have a mortgage and receive a pension, as well as whether or not you have dependent children. If you have a partner, you will also have to provide information about their financial position. This is why we ask for financial information on our referral form, which is available below. When considering whether or not you are eligible for legal aid, the Legal Aid Agency will look at your disposable income (the money you have left after paying basic living expenses) and your disposable capital (any savings, property, investments or valuable belongings that you could use or sell to pay for a lawyer).

For a more detailed assessment of whether you might be eligible for legal aid you can use the Ministry of Justice ‘eligibility calculator’, which is available here, although it should be noted that this is a fairly complex and time consuming tool.

If you are not financially eligible for legal aid you cannot apply for Exceptional Funding. If you need legal representation and cannot afford to pay for it, but do not meet the financial eligibility criteria, please see our guide to funding judicial review without legal aid for other options. If you do not think any of these options will work for you and would like further advice, please e-mail us at exceptionalfunding@dev.publiclawproject.org.uk or call us on 0207 843 1260.

When a person requires legal aid to prevent a breach of their human rights or European Union rights was set out by the Court of Appeal in the case of Gudanaviciene v Director of Legal Aid Casework [2014] EWCA Civ 1840. The court stated that:

• Whether funding is required is not about whether the case is unusual or whether there are many cases. It is about the circumstances in the case;
• “the critical question is whether an unrepresented litigant is able to present his case effectively and without obvious unfairness”;
• Funding can be required under:
  • Article 6 of the European Convention on Human Rights (the right to a fair trial)
  • Article 8 of the Convention (the right to a family life)
  • Article 47 of the European Union Charter of Fundamental Rights
• The test for when funding is required is essentially the same, whether claimed under the European Convention or the EU Charter
• The main factors determining whether funding is required are “(a) the importance of the issues at stake; (b) the complexity of the procedural, legal and evidential issues; and (c) the ability of the individual to represent himself without legal assistance, having regard to his age and mental capacity.”

The Lord Chancellor has published guidance on when exceptional case funding will be available.