On the last day that Parliament sat before the summer recess, the Lord Chancellor laid a set of regulations making significant changes to the merits tests for civil legal aid. As the explanatory memorandum explains, this was done in response to the High Court’s judgment in IS v The Director of Legal Aid Casework & Anor EWHC 1965 (Admin). As we noted, Collins J’s criticism of the application of the merits test applied not just to exceptional funding but to in scope cases as well, and so it is that the tests have been amended.
The Civil Legal Aid (Merits Criteria) (Amendment) (No 2) Regulations 2015 change the prospects of success categories by amending the Civil Legal Aid (Merits Criteria) Regulations 2013. “Poor” has been re-defined as a 20% or more but less than 50% chance of obtaining a successful outcome. There is also a new category of “very poor” – that is, where prospects are less than 20%.
The general merits test is amended so that (as long as the other criteria are satisfied), representation will be granted if prospects are moderate or better as now; in addition, where prospects are borderline or poor, then representation will be granted if it is necessary to prevent a breach of Convention or enforceable EU rights, or if it would be appropriate to do so in the particular circumstances of the case, having regard to any risk that a failure to grant would be such a breach.
Similar amendments are made to the merits tests for public law cases (which for merits purposes includes homelessness), immigration, public law children, private law children, domestic violence and other family cases.
The amended merits tests apply to all cases where a merits determination is made on or after 27 July 2015, and so this will include emergency cases where you grant funding (if you have the power to do so). It also applies to appeals and reviews of refusals where the original determination was made before that date but the appeal or review will be carried out after it.
The explanatory memorandum confirms that the Director is appealing the decision in IS (and has been given permission) and says that, depending on the outcome of the appeal, the merits tests may be revisited again. But that will be some months away, and in the meantime this represents a welcome relaxation of the tight controls over prospects of success that have been applied so far.
The memorandum also notes that the change has been made on an emergency basis and that it has not yet been possible to amend the guidance used by LAA caseworkers or published on the LAA website. It may be that awareness of this change doesn’t filter down to LAA decision makers immediately and so it would be wise to cite the specific regulations if you are applying for legal aid in a borderline or poor case. It would also be sensible to have regard to what was said in IS and Gudanaviciene in applying for legal aid in a borderline or poor case. In essence, where Article 6 or 8 is engaged, unless an unrepresented litigant is able to present his case effectively and without obvious unfairness legal aid should be granted. It will be necessary to set out in any application why this is the case.
UPDATE: The LAA has now issued guidance on how to make applications in borderline and poor cases