The ‘exceptional funding scheme’, which had intended to operate as the government’s  “safety net” for vulnerable people denied legal aid due to cuts to public funding, has been ruled unlawful.

The High Court deemed that the scheme was not only too complex for many applicants in person, but was too rigid to be of use in a large number of cases. Figures for the first nine months show that only one of 62 applications from individuals who were not lawyers was successful. Concerns about the scheme were aired in a recent test case brought on behalf of a vulnerable individual known as “IS”, by the Charity Public Law Project.

Exceptional Funding is supposed to deal with cases where the applicant otherwise falls outside the scope of legal aid but a failure to provide funding may breach their human rights. In practice, there is a success rate of just 13 per cent, meaning that only one in eight applicants receives funding. There is no right of appeal, even when the applicant will not have access to a court or tribunal as a result.

Mr Justice Collins commented that the scheme was not providing the safety net promised by parliament, and that there were serious issues with exceptional funding as it stood – especially in family cases involving contested issues about children. He said:  “I believe that only in rare cases, subject to means and merits if properly applied, should legal aid be denied in such cases. As it is now applied the scheme is clearly wholly deficient in that it does not enable the family courts to be satisfied that they can do justice and give a fair hearing to an unrepresented party.” Recommendations included using a different set of forms for applications in person.

The Ministry of Justice has said it will appeal the judgement.

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