Exceptional case funding under s10 of LASPO was designed to provide advice and representation to people whose human rights are breached or at risk; but whose cases are outside the scope of legal aid as set out in schedule 1 of the Act. However, an astonishingly small number of cases have actually been funded. 1083 cases were determined by the LAA from April – December 2013 (inclusive), of which 35 were granted. 21 of these were for inquests, 8 in Family, 3 in Immigration, 1 in Housing, and 2 ‘other’.
Judgements in recent cases add to the pressure which has been applied by the Public Law Project (PLP) in its ‘IS’ judicial review.
In April, Ousely J ordered that the systemic elements of the case, relating to the operation of the exceptional funding scheme, should be dealt with in a separate hearing. The issues in the ‘IS’ case itself, relating to article 8 in the immigration context, were heard together with five linked cases by Collins J in May. Judgment is expected in the week commencing 9 June.
Meaning of exceptional
Paragraph 58 in the judgment in M v Director of Legal Aid Casework and Ors  EWHC 1354 (Admin) helpfully clarifies that a case does not need to be highly unusual or very much out of the ordinary to qualify for exceptional case funding. You can read a transcript here. The word ‘exceptional’ refers to a case that is an exception to the general regime of the Act.
The case also highlights how important it is for practitioners to address the standard merits criteria as well as the criteria for s10 funding, and indicates that the LAA should consider the exceptional case criteria in all such applications, even where it considers the standard merits test is not met.
Exceptional case funding in family cases
JG v The Lord Chancellor and Ors  EWCA Civ 656 is an important case in relation to legal aid funding for experts. The COA decided that the then LSC was wrong to refuse to pay the whole of the cost of an expert’s report where it was considered to be genuinely the child’s report alone. You can read a transcript here.
We understand that James Turner QC has suggested that the discussion of article 6 and article 8 rights in the judgment may be a ‘toe in the door’ for exceptional case funding in other family law cases where a party cannot represent him/herself effectively and so legal aid may be required to provide access to justice.
Help with exceptional funding cases
PLP has some funding to help practitioners and members of the public make applications for exceptional case funding. You can find more information here.