“Civil legal services are to be available to an individual under this Part if – (a) they are civil legal services described in Part 1 of Schedule 1, and (b) the Director has determined that the individual qualifies for the services in accordance with this Part (and has not withdrawn the determination).” (a) they are civil legal services described in Part 1 of Schedule 1, and (b) the Director has determined that the individual qualifies for the services in accordance with this Part (and has not withdrawn the determination).”
“An individual may qualify for full representation in a public law children case only if the Director is satisfied that— (a) it is reasonable for full representation to be provided, having regard to the importance of the case to the individual; and (b) if the individual is making or supporting an appeal or application, the prospects of success of that appeal or application are very good, good, moderate or borderline.” (a) it is reasonable for full representation to be provided, having regard to the importance of the case to the individual; and (b) if the individual is making or supporting an appeal or application, the prospects of success of that appeal or application are very good, good, moderate or borderline.”
“The purpose of Section 10(3) of the Act is to enable compliance with ECHR and EU law obligations in the context of a legal aid scheme that has refocused limited resources on the highest priority cases. Caseworkers should approach Section 10(3)(b) with this firmly in mind. It would not usually be appropriate to fund simply because a risk (however small) exists of a breach of the relevant rights. The greater the risk of a breach, the more likely it is that it will be appropriate to make a determination. However, the seriousness of the risk is only one of the factors that may be taken into account in deciding whether it is appropriate to make a determination. Regard should be had to all the circumstances of the case.”
“Where an individual makes an application for Legal Help alone, caseworkers should consider particularly carefully whether the Section 10(3) criteria are met. It will not be sufficient that such assistance is merely helpful for the presentation of the case. The failure to provide Legal Help will in itself not usually amount to a breach of ECHR or enforceable EU rights to legal aid. In particular, where the source of the obligation to provide legal aid is Article 6(1), it should be recalled that the obligation can only arise where there is a ‘determination of an individuals civil rights and obligations’ and caseworkers should consider whether an application for Legal Help alone does in fact relate to such a determination”
“181. For the reasons we have given at paras 41 to 59 above in relation to ground 2, the Guidance is not compatible witharticle 6(1) of the Convention and article 47 of the Charter. It impermissibly sends a clear signal to caseworkers and the Director that the refusal of legal aid will amount to a breach only in rare and extreme cases. For the reasons we have given at paras 64 to 77 above in relation to ground 3, the Guidance is not compatible witharticle 8 of the Convention in immigration cases. As is now conceded by the Lord Chancellor, para 60 of the Guidance wrongly states that there is nothing in the current case law that would put the UK under a legal obligation to provide legal aid in immigration proceedings in order to meet its procedural obligations under article 8.”
“It can therefore be seen that the critical question is whether an unrepresented litigant is able to present his case effectively and without obvious unfairness. The answer to this question requires a consideration of all the circumstances of the case, including the factors which are identified at paras 19 to 25 of the Guidance. These factors must be carefully weighed. Thus the greater the complexity of the procedural rules and/or the substantive legal issues, the more important what is at stake and the less able the applicant may be to cope with the stress, demands and complexity of the proceedings, the more likely it is that article 6(1) will require the provision of legal services (subject always to any reasonable merits and means test). The cases demonstrate that article 6(1) does not require civil legal aid in most or even many cases. It all depends on the circumstances. It should be borne in mind that, although in the UK we have an adversarial system of litigation, judges can and do provide assistance to litigants in person. The outcomes in X v UK, Munro and McVicar show that it is not a requirement of article 6(1) that legal services be provided in all but the most straightforward of cases. On the other hand, the outcomes in Airey, P,C and S, Steel and Morris and AK and L do not show that legal services are required only in such extreme cases as these. In short, we do not accept the submission of Mr Chamberlain that these decisions justify the passages in the Guidance which we have criticised at paras 44-45 above.”
“35. In my judgment, the question to be asked in the present context is a more straightforward one, namely whether the system established by the guidance in the policy documentation is inherently unfair by reason of a failure to provide the offender with a fair opportunity to make meaningful representations about proposed licence conditions. If it is, then the guidance itself may be found to be unlawful; but if it is not, the correct target of challenge is not the guidance but any individual decisions alleged to have been made in breach of the requirements of procedural fairness. 36. The key authority is the decision of the Court of Appeal in R (Refugee Legal Centre) v Secretary of State for the Home Department[2004] EWCA Civ 1481 ,[2005] 1 WLR 2219 . That case concerned a challenge to the decision to establish a fast track pilot scheme for the adjudication of asylum applications at Harmondsworth Removal Centre, on the ground that it was inherently unfair and unlawful because it compressed the decision-making process into three days. The Home Office filed evidence that claims which turned out to be particularly complex were removed from the scheme and that caseworkers were encouraged to adopt as flexible an approach as possible without compromising the integrity of the process. Giving the judgment of the court, Sedley LJ rejected a submission by [counsel for the claimant] that the question was ‘whether the system was capable of operating fairly’, pointing out that in a straightforward case the system was perfectly capable of operating fairly. He continued: ‘6… A more appropriate question, in our view, is the one posed by [counsel for the Home Office]: does the system provide a fair opportunity to asylum seekers to put their case? This avoids the arbitrariness inherent in Mr Fordham’s alternative approach of seeking to construct a ‘typical’ case. It embraces, correctly, the full range of cases which may find themselves on the Harmondsworth fast track. There will in our judgment be something justiciably wrong with a system which places asylum seekers at the point of entry… at unacceptable risk of being processed unfairly. This, therefore, is the question we propose to address. 7. We accept that no system can be risk free. But the risk of unfairness must be reduced to an acceptable minimum. Potential unfairness is susceptible to one of two forms of control which the law provides. One is access, retrospectively, to judicial review if due process has been violated. The other, of which this case is put forward as an example, is appropriate relief, following judicial intervention to obviate in advance a proven risk of injustice which goes beyond aberrant interviews or decisions and inheres in the system itself. In other words it will not necessarily be an answer, where a system is inherently unfair, that judicial review can be sought to correct its effects…’” ‘6… A more appropriate question, in our view, is the one posed by [counsel for the Home Office]: does the system provide a fair opportunity to asylum seekers to put their case? This avoids the arbitrariness inherent in Mr Fordham’s alternative approach of seeking to construct a ‘typical’ case. It embraces, correctly, the full range of cases which may find themselves on the Harmondsworth fast track. There will in our judgment be something justiciably wrong with a system which places asylum seekers at the point of entry… at unacceptable risk of being processed unfairly. This, therefore, is the question we propose to address. 7. We accept that no system can be risk free. But the risk of unfairness must be reduced to an acceptable minimum. Potential unfairness is susceptible to one of two forms of control which the law provides. One is access, retrospectively, to judicial review if due process has been violated. The other, of which this case is put forward as an example, is appropriate relief, following judicial intervention to obviate in advance a proven risk of injustice which goes beyond aberrant interviews or decisions and inheres in the system itself. In other words it will not necessarily be an answer, where a system is inherently unfair, that judicial review can be sought to correct its effects…’”
“27. I would accept Mr Eadie’s summary of the general principles that can be derived from these authorities: (i) in considering whether a system is fair, one must look at the full run of cases that go through the system; (ii) a successful challenge to a system on grounds of unfairness must show more than the possibility of aberrant decisions and unfairness in individual cases; (iii) a system will only be unlawful on grounds of unfairness if the unfairness is inherent in the system itself; (iv) the threshold of showing unfairness is a high one; (v) the core question is whether the system has the capacity to react appropriately to ensure fairness…; and (vi) whether the irreducible minimum of fairness is respected by the system and therefore lawful is ultimately a matter for the courts…”
“[i]t has long been a basic principle of administrative law that a discretionary power must not be used to frustrate the object of the Act which conferred it”
“(i) The complexity of the ECF application form [53, 56, 80 and 105]; (ii) The level of detail that applicants for ECF were required to provide [54, 65, 80 and 105]; (iii) The requirement for an applicant to provide details of his means before his ECF application was considered [63]; (iv) The absence of a formal emergency procedure for considering ECF applications in urgent cases [77]; (v) The manner in which the Legal Aid Agency approached the merits test, which the learned judge found involved consideration of the merits on the assumption that the applicant would remain unrepresented, and also found to amount to an unacceptable pre-judgment of the decision that the court would reach in the litigation for which funding was sought [96 & 106]; (vi) The absence of sufficient guarantees within the ECF system to protect the applicant from arbitrariness and, in particular, the absence of a right of appeal to a judicial body against refusal of ECF in circumstances in which the result of refusal would be an infringement of the very essence of the right of access to a court [92-93 & 107]; (vii) The absence from the scheme of arrangements to pay providers for doing the preliminary investigative work (which may include obtaining expert evidence) which may be needed to determine whether a client has a proper claim for ECF [57, 59 and 105].”
“79… I am entirely satisfied that the scheme is not, as it is operated, meeting its need to ensure that an unrepresented litigant can present his or her case effectively and without obvious unfairness. That extends to the need to ensure that he or she has access to assistance which may be needed, as in IS's case, to make representations to the relevant authority to achieve a particular purpose. The same need exists as for hearings before a court or tribunal. 80. The main problem lies in the forms which are prescribed. They are far too complicated and are not at all helpful to lay persons. Providers have difficulties with them and the small level of grant has unquestionably, on the evidence which has not shown to be erroneous, led to the unwillingness of providers to take on clients who need to apply for ECF. The scheme is not properly providing the safety net which s.10 is supposed to provide. It is to be noted that it was anticipated that some 5,000 to 7,000 applications would be made in a year. The actual rate was a fraction of that. The defendants say that the figures they relied on were only estimates for planning purposes. In a letter of20 August 2013 the MoJ stated that the figures were based on the number of grants estimated in the LASPO consultation exercise, namely 3,700. It is significant that the scheme has not produced anything like that number of grants, let alone applications. Furthermore, as the OS has indicated and a number of applications dealt with in the statements confirm, the hurdle erected for those who lack capacity is far too high. Those who are unable to pay for legal assistance are suffering in a way that Parliament cannot have intended.”
“[a]ny work done prior to a decision on an unsuccessful application will not be remunerated. No payment will be made for unsuccessful applications”
“48. The ECF application form requires the giving of information under five headings, A to E. There are four separate sub-headings in A under the heading ‘Generic Information’. The first asks ‘How important are the issues at stake for the client?’, the second asks ‘How complex are the proceedings, the area of law or the evidence in question?’. It continues:- ‘You should discuss factual, procedural and legal complexity. Please specify the court, tribunal or other forum in which the case will be heard (e.g. First Tier Tribunal, County Court, High Court).’ The third asks ‘how capable is the client of presenting their case effectively?’ It continues:- ‘Please consider the client’s education or relevant skills/experience, any relevant disabilities, the client’s capacity, including whether a litigation friend may be able to conduct proceedings on the client’s behalf.’ The fourth requires that any additional information that is relevant to the question of whether ECF should be made available is specified. 49. Section B is headed ‘Legal Aid underArticle 6 ECHR ’ and contains the question ‘Does the case involve a determination of the applicant's civil rights and obligations?’. If the answer is yes, reasons should be given providing references to any supporting case law if appropriate. The second question is whether the failure to provide legal aid would be a breach of the client's right underArticle 6(1) ECHR . If the answer is yes, the same requirement to give reasons and refer to supporting case law is stated. 50. Section C is headed ‘Other ECHR Rights’. It asks whether the failure to grant ECF would breach any other ECHR right, and, if so, reasons and, if appropriate, supporting case law should be provided. Section D asks the same question and requires the same information if it is said that the failure to grant ECF would breach an enforceable EU right to legal services, for example under Article 47 of the Charter of Fundamental Rights. 51. Section E asks for the extent of the services to be provided. This requires the level of services to be specified under the three headings: licensed work, special case work services and controlled work services. These are defined in the Procedure Regulations as I have already indicated. Reasons must be given why the services requested are the minimum required to meet the obligations under ECHR or EU law. 52. Finally, there is a section which deals with urgent case details, limited to licensed work or special case work services. It asks for details of any imminent dates for an injunction or other emergency proceedings, for a hearing or for the expiry of a limitation period. The questions posed are first whether a delay would ‘cause risk to the life, liberty or physical safety of the client or his or her family or the roof over their heads?’. The second question is whether a delay would ‘cause a significant miscarriage of justice or unreasonable hardship to the client, or irretrievable problems in handling the case?’. If either question is given a positive answer reasons must be given.”
“[a] form can set out the [G] test and ask why legal assistance is needed in order to satisfy that test” (56); access to Legal Help should be addressed in circumstances where the solicitor perceives that work is required to determine whether the client in fact needs funding: “[c]onsideration must… be given to this since the evidence is that solicitors are for good reason not prepared to engage in work for which payment is not likely to be received” (57). This last criticism is described by Collins J as a “fundamental defect in the form and the scheme”
“For in-scope applications, those which are urgent are to be dealt with in 48 hours and full merits and means forms will be required only if the emergency certificate is granted. I have already noted that regulation 66(3) of the Procedure Regulations disapplies this urgent case procedure for ECF applications. It is difficult to understand the reason for this since the need for urgent assistance will be the same whether or not the case is within scope.” (paragraph 77) And at paragraph 93: “The right to seek judicial review (which is in scope) is not an entirely satisfactory remedy since it is only possible to quash a refusal if an error of law is established. Essentially, in most cases it would be necessary to show that the decision was irrational in Wednesbury terms. In my view, the system is defective in failing to provide for a right of appeal to a judicial person against a refusal where the result would be an infringement of the very essence of the right of access to a court.”
“60. It is instructive to follow the evidence of an individual who has tried to apply in person. The successful applicant is known as JLE. She describes her experience of trying to get legal assistance as a total nightmare. I need not go into great detail. Suffice to say that she had had a most unfortunate history of abuse when a child and suffered from post natal depression. She was convicted of administering a toxic substance to her very young daughter. As a result of this and her then mental condition, care proceedings were instigated by the local authority in respect of her daughter and her as yet unborn son. It must have been obvious that her desire to maintain contact with her children engaged her Article 8 rights and involved a difficult case which she would be unable to deal with if unrepresented. Her application was refused in a very lengthy but seriously flawed response. She wished to apply for a review. She says (and this is not disputed) that the person to whom she spoke tried to dissuade her on the basis that the matter was not complex. She was advised to go to different solicitors (she had approached her former solicitors) or to a CAB and seek pro-bono help. She had to attend a hearing, which fortunately turned out not to be of great importance, unrepresented, an experience she found incredibly stressful. This was because of delays by the LAA. Eventually, ECF was provisionally granted subject to full means information being supplied. 61. JLE concludes:- ‘In my experience solicitors in my area are not (at least in the absence of payment) willing to help people to make applications for [ECF]. Further, the LAA made no concessions at all for the fact that I was unrepresented. I was actively requested to fill in lengthy and complicated forms, refused funding for legal reasons I could not understand, discouraged from appealing and ultimately denied the positive decision to which I was entitled in time to enable me to be represented.’” ‘In my experience solicitors in my area are not (at least in the absence of payment) willing to help people to make applications for [ECF]. Further, the LAA made no concessions at all for the fact that I was unrepresented. I was actively requested to fill in lengthy and complicated forms, refused funding for legal reasons I could not understand, discouraged from appealing and ultimately denied the positive decision to which I was entitled in time to enable me to be represented.’”
“Application tab 1: the unsuccessful applicant was told to contact a solicitor for advice. Application tab 2: the application was refused because the ECF form was unsigned (when that is not supposed to be a precondition for a direct client application). Application tab 6: the unsuccessful applicant was told that a full determination could only be made by lodging a full set of completed forms signed by a solicitor. Application tab 10: the application was refused for failure to complete form MEANS1 (when that is not supposed to be a precondition for a direct client application). Application tab 25: the LAA refused to reconsider the matter unless fully completed CIVAPP1, CIVECF1, CIVMEANS forms and supporting documentation were provided.”
“JLE… was initially told by the LAA that she did not need ECF because by making the application she had shown that she was able to convey her concerns effectively”
“[t]his case pre-dated [G]… The Defendants accept that it would have been better for the decision-maker to seek further information on the contact application before refusing the ECF application.”
“We already carry out a lot of work pro bono, at low cost, and at non-commercial rates. We have done so for many years and will continue to do so. Our commitment to meaningful access to justice for our clients demands it. However, balancing this commitment with the financial realities of publicly funded work to maintain the viability of the practice is a constant challenge, and one that is becoming increasingly difficult with further restrictions on the scope of legal aid and its terms. There simply isn’t scope within this already fragile model to add into the mix a source of funding which is marred by a disproportionately large amount of initial unpaid administrative work, significant delays, a disproportionately high refusal rate and the absence of a sufficiently certain set of funding criteria to enable informed decision to be made on case selection. And which, even at the end of this, even if successful, pays for our work at rates which do not even cover our overheads.”
“Mr Hundt, while criticising the ECF scheme, acknowledges that he has limited experience of it. He has provided too few details of the case in which he was involved for the Defendants to be able to identify it.”
“It is economically irrational for legal aid firms to work on ECF applications where (i) unsuccessful applications are unpaid, (ii) 87% of applications are unsuccessful, (iii) it takes many hours to make an application, which would otherwise have been spent on chargeable work, (iv) successful applications are paid at ordinary legal aid rates and (v) legal aid firms are struggling to survive. In those circumstances, it would be surprising if legal aid firms were willing to make applications. The evidence before the Judge from legal aid providers was that they were unwilling to act in an economically irrational way and would not make ECF applications for new clients. The volume and quality of that evidence was unprecedented in judicial review proceedings; it came from firms responsible for making 20% of all ECF applications and 44% of all successful applications ever made.”
“The legal aid reforms have reduced the supply of legal aid services: - The number of civil and family legal aid providers fell by almost a quarter in 2013-14 compared to 2012-13 (Laspo One Year On, Bar Council report, para 177…). - There are 14 local authority areas in which no face-to-face civil legal aid work was started and 39 in which fewer than 49 pieces of legal work per 100,000 people was started in 2013-14 (National Audit Office, Implementing reforms to civil legal aid,20 November 2014 …). The Law Society has warned that ‘the future sustainability of legal aid practice is in significant doubt’ (Justice Committee, Report on the Impact of Changes to Civil Legal Aid,5 March 2015 , para 77…). Firms that continue to do legally aided work operate on much reduced profit margins. Fees paid for legal aid have not been increased for inflation since 1998-99, which equates to a real-terms reduction of 34% (Public Accounts Committee, Report on Implementing Reforms to Legal Aid,19 January 2015 , para 19…). On top of that, the Ministry of Justice cut fees by 10% from3 October 2011 (The Community Legal Service (Funding) (Amendment No.2) Order 2011 ). This means that legal aid providers have little capacity to do unpaid work.”
“It is the LAA’s experience that solicitors/providers are willing to make full ECF applications on behalf of their clients, across different areas of law… By way of example, Mr Furner, on whose evidence the Claimant relies, says that, while he is disillusioned with the ECF process and expects to have to litigate to achieve ECF (his firm having been involved in only 8 applications) he will still apply for ECF in an appropriate case… Legal services providers routinely make judgments about degrees of risk, and accept or reject business accordingly. It is not unreasonable to expect them to do so in respect of the relatively small cost of making ECF applications, and to manage time and disbursements accordingly.”
“It is said that evidence is not now requested and cases in which that request was made occurred in the early days and are not to be repeated. Nevertheless, there have been instances when information perhaps in the form of existing reports has been requested.”
“73. The OS has particular concerns for patients, namely persons lacking mental capacity, and children who cannot engage in litigation without a litigation friend. He is a litigation friend of last resort in the sense that he will act only where no other litigation friend can be found. He will not, save in rare cases, himself conduct litigation and needs to have external funding… It must be obvious that the difficulties in dealing with the prescribed forms and in making applications apply with greater force where children or adults who lack capacity are concerned. The response given is that a litigation friend can conduct the litigation and can apply for ECF. Equally, it is said that a litigation friend can conduct a case and so can be expected to be treated in the same way as would a litigant who had capacity. The evidence from Mr Bryant, the head of ECF determinations in the LAA, is that the ECF team does not expect litigation friends to conduct the litigation as advocates, but they step into the protected person’s shoes. The same point is made by the policy manager in the Ministry of Justice’s legal aid policy team, Mr Holmes, in his statement. 74. There is a powerful disincentive for a litigation friend to act since he or she undertakes not only to pay the protected person’s costs but any costs that the court may order to be paid by the protected person. While the litigation friend will expect to recover from the protected person such costs, that is unlikely to be realistic when the protected person lacks means and so could be financially eligible for legal aid. Equally, a litigation friend is under a duty to act always in the protected person’s best interests and those may not be in accordance with the protected person’s views, albeit those views must always be put to the court. Thus in many cases it would be inappropriate for a family member (for example a parent of a child) to act as a litigation friend since there may be a need for objectivity which could not be met. Further, McKenzie friends cannot be used. It follows that in many cases involving impecunious children or adults who lack capacity there will be real difficulties in finding a litigation friend prepared to act having regard in particular to liability for costs. Thus the OS may have to act if approached. He will not normally be able to act for an impecunious individual, unless, absent a CFA or a costs undertaking from the opposing party, there is legal aid.”
“You can apply directly to the Exceptional Case Funding team at the Legal Aid Agency. You don’t have to name a solicitor in the application. How to apply It may help you to provide the right information if you use the forms for making legal aid applications. The CIV ECF1 form asks questions about why you’re applying for exceptional funding. The means and merits forms ask questions about your financial circumstances and your case. If you need help about which form to use then phone us or email the Exceptional Case Funding Team (ECF). If you don’t use the forms we can only give you a preliminary view based on your information. As a minimum, send the following to us in writing: . Background to your case, including all the main facts. . What you need legal advice on or what court proceedings you need representation in. Explain why you cannot represent yourself. . What outcome you wish to achieve. . Information that will support your application eg court applications and orders, expert and medical reports, copies of any decisions you wish to challenge. . Information on your financial situation. We cannot give you legal advice on the merits of your underlying case but we will consider your application. What happens next? We’ll send you a decision in writing. If you sent us information about your case instead of filling out the form, we can only provide you with a preliminary view. This is not a guarantee that exceptional funding will be granted after consideration of a full application. Also, we may change our decision either way if, for example, new information or evidence is provided to us. Whatever decision we make you may seek help from a legal adviser.”
“…There is general concern about how long the form is, and the practicality of practitioners being asked to take on such work for free. However, given the nature of the test the Government has set, I am not convinced there is a lot the LSC can do about that…”
“Statements have been lodged by providers who have made some 20% of applications for ECF. This has been relied on by Mr Chamberlain in submitting that it cannot be said to represent other than a relatively small proportion of those who have made such applications. In addition, the first defendant has evidence from Helen Keith, a solicitor in his ECF team, making the point that some 24 of the providers who have lodged statements have not submitted any application for ECF, a further 20 have submitted only one and a further 13 only two. This is relied on to suggest that there has been insufficient knowledge or experience of the scheme to justify the criticisms. Further, overall the point is made on the defendants’ behalf that much of the evidence relied on relates to an approach dictated by the guidance which set too high a threshold and which I and the Court of Appeal decided was unlawful.”
“29. Until my decision in June 2014, the success rate in grants of non-inquest ECF amounted to a little over 1%. That on any view is a very worrying figure. It has since increased. There has been some argument about the precise calculations, but I need not go into detail. Suffice to say that I am satisfied from the claimant's evidence, albeit the defendants have said that the success rate has risen above 15%, it is more likely to be, when proper account is taken of the limitation to non-inquest cases, about 13%. That remains a very low figure.”
“It is self-evident that where a state chooses a ‘legal aid’ system to provide for access to court, such a system can only operate effectively, given the limited resources available, by establishing machinery to select which cases should be legally aided. Such limitations on the availability of free legal aid, common to most Convention countries, often require a financial contribution or that the proposed litigation have reasonable prospects of success. In the Commission’s view, Article 6(1) [sc. of the ECHR] does not require that legal aid be provided in every case, irrespective of the nature of the claim and supporting evidence. Where an individual is refused legal aid in a particular case because his proposed civil claim is either not sufficiently well grounded or is regarded as frivolous or vexatious the burden would then fall on him to secure his ‘access to court’ in some other way such as, for example, bringing the action himself or seeking assistance from some other source. Accordingly the Commission is of the opinion that where a prisoner has been refused legal aid on the basis that his claim lacks reasonable prospects of success such a situation would not normally constitute a denial of access to court unless it could be shown that the decision of the administrative authority was arbitrary.”
“24. It is true that in Aerts, the Court found a violation of Article 6 § 1 after noting that by ‘refusing the application [for legal aid] on the ground that the appeal did not at that time appear to be well-founded, the Legal Aid Board impaired the very essence of Mr Aerts’s right to a tribunal’… 25. However, the Court considers it important to have due regard to the quality of a legal aid scheme within a State. 26. The scheme set up by the French legislature offers individuals substantial guarantees to protect them from arbitrariness. The Legal Aid Office of the Court of Cassation is presided over by a judge of that court and also includes its senior registrar, two members chosen by the Court of Cassation, two civil servants, two members of the Conseil d’Etat and Court of Cassation Bar and a member appointed by the general public (section 16 of the Law of10 July 1991 cited above). Moreover, an appeal lies to the President of the Court of Cassation against refusals of legal aid (section 23 of the Law). In addition, the applicant was able to put forward her case both at first instance and on appeal. 27. In the light of the foregoing, the Court holds that the Legal Aid Office’s refusal to grant the applicant legal aid to appeal to the court of Cassation did not infringe the very essence of her right of access to a court.”
“Though the pursuit of the proceedings as a litigant in person by the applicant’s mother would not have been an easy matter with or without other assistance, the limited public funds available for civil actions renders a procedure of selection a necessary feature of the system of administration of justice and the manner in which it functioned in this case has not been shown to be disproportionate or to impinge on the essence of the right of access to court (see the judgment Del Sol v. France…)”
“The court was able to distinguish Aerts in Del Sol because of the involvement of judges of the court in considering the grant of legal aid and a right of appeal to a judicial body against a refusal. I see no reason to distinguish Aerts where, as here, there is no judicial input into the decision making process and no right of appeal. This applies only if there would be an infringement of the very essence of the right of access to a court or tribunal. That would be the position in the case if an individual who lacked capacity, could find no litigation friend willing to act and the OS could not himself act as litigation friend unless legal aid were granted.”
“69… The guidance does not deal with Article 8 albeit the court in G made it clear that the procedural requirements inherent in Article 8 are essentially the same as those in Article 6(1). Effective access required to protect Article 8 rights is needed and that means that legal aid is required to ensure that there is such access and it is fair. Thus the approach set out in paragraph 39 would seem to be applicable where article 8 rights are concerned. 70. If followed literally, paragraph 39 would seem to be intended to mean that Legal Help would not be available in circumstances where an applicant wants to know whether his case does merit legal assistance. That is the gap in the scheme to which I have referred. I think the guidance is too limiting and fails to recognise that without Legal Help there may well be a real risk that lack of further legal assistance will breach Convention or EU rights.”
“65. The judge noted that paragraph 39 set out the approach to be adopted in respect of cases in which Article 6 was engaged. He observed that a similar approach ‘would seem to be applicable’ when Article 8 rights were concerned. He went on to conclude that the Amended Guidance was too limiting, and failed to recognise that without Legal Help there was a risk that certain applicants’ Convention rights would be breached. However, the judge was wrong to find any error in this paragraph. To the extent that the Judge took issue with the reference to Article 6(1), it is entirely correct that ‘where the source of the obligation to provide legal aid is Article 6(1)’ the obligation will only arise where there is a determination of civil rights or obligations. It is not suggested that this applies in cases where the source of the right is Article 8 (which is dealt with separately at paragraphs 27-29 of the Amended Guidance).”
“I see no reason why a form for those who do not have providers should not in addition be prescribed. This need do no more than require the information set out in the website. The LAA has trained lawyers for whom it should be simple … to see whether it appears that there would be a need for legal assistance.”