The Legal Aid Agency (LAA) is an executive agency of the Ministry of Justice (MoJ) created to provide funding for individuals who require legal assistance. A form of legal aid called exceptional funding was created in order to ensure that that individual entitlements under the European Convention of Human Rights were not at risk of being breached if they were not given Legal Aid.

Mr Justice Collins, in a recent High Court judgement, submitted that the safety net to ensure that vulnerable individuals are provided with access to justice and legal aid does not work.  This judgment raises concerns about changes implemented by the controversial Legal Aid, Sentencing and Punishment of Offenders Act 2012 (LASPO).

Mr Justice Collins said in his ruling “The Legal Aid Agency’s exceptional case funding scheme is not in accordance with the law and must be altered”. The scheme as currently operated is not providing the safety net promised by ministers and is not in accordance with S.10 of LASPO 2012, in that it fails to ensure that the applicants’ human rights are safeguarded.

Amongst other things said in his judgment, he pointed out that exceptional funding for Legal Aid application forms are “far too complex” for individuals to complete without the help of a solicitor. He called for more user-friendly forms to be introduced and also advised that further consideration should be given to enable solicitors to ascertain whether a claimant has a case which should be granted Legal Aid. The “merits test” applicants had to pass before being granted Legal Aid was flawed.

The MoJ claim that no miscarriages of justice have occurred where exceptional funding was refused.  Initially the MoJ estimated that there would be approximately 6,000 exceptional funding applications a year. However, between 1 April and 28 October 2013 a mere 893 applications were submitted, of which only 23 were successful. Applicants face considerable obstacles in applying for exceptional funding and are faced with a funding scheme which does not serve its purpose in enabling individuals to defend their basic rights.

The Ministry of Justice said it would appeal against the High Court’s decision.