Under LASPO 2012, there is a new fund from which legal aid can be made available by way of exceptional funding.
This fund will consider applications for individuals who would otherwise not get legal aid and where failure to provide legal aid would be in breach of the individual’s convention rights, most likely to be under Articles 6 or 8. They still need to be eligible on means.
The Guidance you need to refer to is to be found on this Justice website page
It was made clear when this was introduced that successful applications were likely to be few. However practitioners did not predict such a low level of successful applications.
Solicitors are only paid for these applications if they are successful. Thus many solicitors are not prepared to take the risk in completing what is clearly a very detailed submission. The Public law Project is accepting referrals for completing applications from clients direct
What we have heard from the LAA is that
• There had been 357 applications for family cases but only 3 applications have been granted (as at the start of September). [There were 569 applications processed but only 11 granted across all categories]
• A significant proportion of applications were made where legal aid is in fact available and the applications had been referred to be considered to the merits and means team
• The quality of the applications was not very good to start with although had improved
• It is clear the application has to be very well drafted, not just making broad comments but emphasising with careful reference what aspects of the case require legal aid to be granted, referring particularly to complex facts and arguments
• The LAA is not going to grant EF just because the client would find it difficult to represent himself; or that the client has a level of difficulty that would make it even harder for the client to represent himself (e.g. a diagnosis of schizophrenia); or just because the client has a disability; or just because human rights issues are engaged
• The LAA will look to applicants to find people to support them in court so that would not be a reason to grant EF
• Successful applications will relate closely to the guidance and careful and focused completion of the application
• Applications must come to the London team. There is no emergency procedure but if it is urgent the team will try and deal quickly with the application
• Judicial comment that the case is particularly complex and setting out reasons for this might carry weight
Please do consider making applications where you feel a case has substantial merit
We consider that one area that should be pursued relates to the position for the parent, who has agreed to place her child with a family member, but then wants the child to be returned. There are no care proceedings and the family member is supported by the Local Authority to pursue a special guardianship order. Sometimes the Local Authority may even fund this family member. The natural parent finds themselves facing a care case in all but name, trying to fight for the care of their child and facing the prospect of a very significant decision being made about their child’s future without any of the safeguards a properly conducted care application would give them. The parent won’t get legal aid. This is a very serious consequence of the changes in April and it seems to us that a strong and well argued case for EF for a parent in this situation should be submitted.
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