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Exceptional circumstances in Legal Aid

Date: (8 April 2013)    |    

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From 1 April, the Legal Aid, Sentencing and Punishment of Offenders Act 2012 (LASPO) has revamped the statutory framework for legal aid in England and Wales.
Part 1 of schedule 1 to LASPO contains the remaining areas of law which are eligible for legal aid and the areas of law which are being taken out of scope, in whole or in part are education, housing, non-asylum immigration, welfare benefits, debt and private family law.
But section 10 of LASPO provides the new director of legal aid casework with the power to provide ‘exceptional funding’ for cases that are out of scope.
Part 8 or the Civil Legal Aid (Procedure) Regulations 2012 indicates that providers of legal services will not have delegated powers to grant exceptional funding. But an application must be made to the director for an ‘exceptional case determination’.
Section 10(3) of LASPO states that an exceptional case determination is a determination:
a) that it is necessary to make the services available to the individual under this part because failure to do so would be a breach of
1) the individuals convention rights as per the Human Rights Act 1998 or
2) any rights of the individual to the provision of legal services that are enforceable EU right’s, or
b) that it is appropriate to do so, in the particular circumstances of the case, having regard to any risk that failure to do so would be such a breach.
Guidance on the exceptional funding regime has been produced by the Lord Chancellor. Where an application for exceptional funding under section 10 of LASPO is refused, there is a procedure for seeking an internal review of that decision, but no provision for further appeal.
And any refusal to grant exceptional funding that is upheld on an internal review would therefore be open to challenge only by way of judicial review.
When? the provision of exceptional funding under the European Convention on Human Rights (ECHR) is required. To be continued…