In IS v Director of Legal Aid Casework and the Lord Chancellor  EWHC 1965 (Admin), Collins J has roundly condemned the Exceptional Case Funding (ECF) scheme established under s.10(3) of the Legal Aid Sentencing and Punishment of Offenders Act 2012 as too restrictive and not complying with the requirements of Articles 6 or 8 of the ECHR.
The claim was ultimately framed as a test case, pursued by the Official Solicitor (very properly discharging his wider functions), on the basis of his concern that the scheme failed properly to deal with claims made by those who lack capacity, whether as children or as adults, particularly where the Official Solicitor has to act as litigation friend because no other person is available. That was the position in this claim.
The judgment of Collins J is very lengthy, but for mental capacity addicts, the most significant passages are those vividly describing the difficulties arising where individuals lack the material capacity:
“73. The OS has particular concerns for patients, namely persons lacking mental capacity, and children who cannot engage in litigation without a litigation friend. He is a litigation friend of last resort in the sense that he will act only where no other litigation friend can be found. He will not, save in rare cases, himself conduct litigation and needs to have external funding. His concerns not only relate to cases in which he has acted as a litigation friend, but more generally that the scheme fails to meet the needs of those who lack capacity. It must be obvious that the difficulties in dealing with the prescribed forms and in making applications apply with greater force where children or adults who lack capacity are concerned. The response given is that a litigation friend can conduct the litigation and can apply for ECF. Equally, it is said that a litigation friend can conduct a case and so can be expected to be treated in the same way as would a litigant who had capacity. The evidence from Mr Bryant, the head of ECF determinations in the LAA, is that the ECF team does not expect litigation friends to conduct the litigation as advocates, but they step into the protected person’s shoes. The same point is made by the policy manager in the Ministry of Justice’s legal aid policy team, Mr Holmes, in his statement.
74. There is a powerful disincentive for a litigation friend to act since he or she undertakes not only to pay the protected persons costs but any costs that the court may order to be paid by the protected person. [note, the relevant forms in the Court of Protection do not make this express, but it is must be implicit as a matter of substantive law]. While the litigation friend will expect to recover from the protected person such costs, that is unlikely to be realistic when the protected person lacks means and so could be financially eligible for legal aid. Equally, a litigation friend is under a duty to act always in the protected person’s best interests and those may not be in accordance with the protected person’s views, albeit those views must always be put to the court. Thus in many cases it would be inappropriate for a family member (for example a parent of a child) to act as a litigation friend since there may be a need for objectivity which could not be met. Further, McKenzie friends cannot be used. It follows that in many cases involving impecunious children or adults who lack capacity there will be real difficulties in finding a litigation friend prepared to act having regard in particular to liability for costs. Thus the OS may have to act if approached. He will not normally be able to act for an impecunious individual, unless, absent a CFA or a costs undertaking from the opposing party, there is legal aid.
75. Problems have arisen in that the LAA has in a number of cases required the lack of capacity for an adult to be established. It is said that evidence is not now requested and cases in which that request was made occurred in the early days and are not to be repeated. Nevertheless, there have been instances when information perhaps in the form of existing reports has been requested. It seems somewhat improbable that an individual would falsely assert a lack of capacity but no doubt that could occur. I was told that if the OS were acting no issue would be raised about capacity. However, it will often be necessary to have some medical evidence and that must be paid for. Furthermore, solicitors must be available to act. The defendants say that the OS’s concerns that protected persons cannot be expected to make applications themselves is based on the incorrect assumption that solicitors are unwilling to make such applications. The evidence before me as I have said shows that it is no assumption but entirely correct.
In summary, Collins J held that:
“105. As will become apparent, I think that there must be changes to the scheme. The ECF application forms are far too complex for applicants in person. Separate forms should be provided. Indeed, overall the test set out in R(G) can be set out in the form and applicants or providers can then be required to give full details of the need for legal assistance by producing all existing material relevant to the application. As I indicated, what is put on the website can surely be put on a form. Consideration must be given to provision of Legal Help to enable providers to do work to see whether a client has a case which should be granted legal assistance because it qualifies within s.10 of the Act. No doubt the LAA will be entitled to decide whether any such application is reasonable since a provider must satisfy himself that there is a possible need for legal assistance on the basis of preliminary information given by the client and any relevant documents provided. Legal Help does not require a prospect of success test.
106. The rigidity of the merits test and the manner in which it is applied are in my judgment wholly unsatisfactory. They are not reasonable.
107. As will be clear, I am satisfied that the scheme as operated is not providing the safety net promised by Ministers and is not in accordance with s.10 in that it does not ensure that applicants’ human rights are not breached or are not likely to be breached. There is a further defect in the failure to have any right of appeal to a judicial body where an individual who lacks capacity will otherwise be unable to access a court or tribunal.”
We understand that Collins J granted permission to appeal, an avenue that the LAA/Lord Chancellor will no doubt be pursuing with vigour. Hopefully the line can be held before the Court of Appeal.