Exceptional Funding Breakthrough

Exceptional Funding Breakthrough

By Chris Johnson

Regular readers will know that Section 10 of the Legal Aid, Sentencing and Punishment of Offenders Act (LASPOA) 2012 provides for exceptional funding in areas which are now out of scope for legal aid in order, amongst other matters, to avoid there being a breach of Article 6 of the European Convention on Human Rights (the right to a fair hearing). However, in 2013 to 2014, out of a total of 1,520 exceptional funding (EF) applications, only 69 were granted (and only one in the area of Housing Law, which incorporates accommodation issues for Gypsies and Travellers).

Parminder Sanghera of TAT has been fighting for a Romani Gypsy client who has been trying to obtain planning permission for her one caravan site. Our client is barely literate and (understandably) does not understand all the complexities of planning law. Her case had to go to a Public Inquiry and she was not able to represent herself. We sought EF for our client. The Legal Aid Agency argued that our client could run her Inquiry case herself or perhaps with the help of someone else such as her brother. An enormous battle then ensued and, throughout the matter, the Legal Aid Agency (LAA) refused to provide EF for our client. After an unsuccessful initial judicial review application, a second judicial review application was lodged challenging this decision and, shortly after the lodgment of this application, the LAA decided to grant EF to our client.

At virtually the same time, Magdalene Robinson in the CLP Housing Team has been fighting to get EF for her housed client who faces a claim for demotion of her tenancy. The basis of the claim is anti-social behaviour committed by the client’s son, from the age of 7 (he is now 13). The anti-social behaviour is caused by a diagnosed disability that is currently uncontrolled and there is nothing the client can do to correct his behaviour in the absence of stronger medical support. A demotion of the client’s secure tenancy will achieve nothing other than to make it easier for the local authority to evict the client and her children, since it will not need to prove to the court that any of the grounds for possession exist. A pre-action protocol letter was sent to the LAA, threatening judicial review action against its refusal to grant legal aid to the client to enable her to defend the claim. The letter raised two issues: 1) whether the LAA was correct to publish guidance stating that demotion claims are out of scope for legal aid, when they are clearly “relating to the loss of home”; and 2) even if these claims are out of scope, the case satisfied the criteria for EF. The LAA has also now indicated in that case that EF will be granted (the argument as to whether demoted tenancy cases are within scope for legal aid remains. At the time of writing the LAA has not provided reasons for its assertion that these cases are no longer in scope).

These cases demonstrate the accuracy of what was said by Coulson J in M v Director of Legal Aid Casework [2014] EWHC 1354 (Admin), a previous challenge concerning EF (at para 58):

There was some debate before me as to what is meant by an ‘exceptional case’ in Section 10 of LASPO. The defendant and [the Lord Chancellor] suggested that this meant not only a case that was outside Part 1 of Schedule 1 of LASPO, but also a case that was exceptional in its wider meaning, namely a case that was highly unusual or very much out of the ordinary. I do not accept that submission. It seems to me that, as a matter of statutory interpretation, Section 10 of LASPO is dealing with those cases which fall outside Part 1 of Schedule 1 of the Act. They are therefore exceptional, in that they are an exception to the general regime of the Act, which is that civil legal aid is only available for those cases falling within Part 1 of Schedule 1. In my view, there is no wider meaning (and certainly no magic) in the term “exceptional case”.

These are extremely important decisions and we hope that they indicate a sea change at the LAA in terms of how EF applications are dealt with. Congratulations to Parminder and Magdalene and to the barristers who assisted with these cases, Joe Markus and James Stark of Garden Court North Chambers.

Chris Johnson (chrisjohnson@communitylawpartnership.co.uk)

Travellers Advice Team (TAT) at Community Law Partnership (CLP)

TAT operates a national Helpline for Travellers on 0121 685 8677, Monday to Friday 9.00 am to 5.00 pm

CLP’s website is at http://www.communitylawpartnership.co.uk/