There has been a significant decline in exceptional case funding (ECF) applications since the start of the Covid-19 pandemic, according to statistics published by the Ministry of Justice last week. The ECF regime (the so called legal aid safety net) is designed to provide access to legal aid where a failure to do so would breach an individual’s human rights and has long been criticised for being ineffectual. In a time fraught with emergency measures and economic hardship, some may have predicted that applications to legal aid’s ‘safety net’ would rise. However, ECF applications have dropped by 23% compared to the same period for the previous year, and 30% compared to the first three months of 2020.
Public Law Project’s (PLP) updated report on improving the ECF scheme provides insight into the reasons behind this sudden drop in applications. It began by emphasizing that this drop can likely be ‘wholly attributed’ to the pandemic since the number of ECF applications has been rising steadily each year since 2014/15. The report found that 60% of legal aid providers felt that the pandemic had directly impacted their capacity or ability to make ECF applications. The cited reasons included a high workload and less capacity, difficulties collecting evidence from clients who were unable to access the necessary technology, and no staff access to printing or other resources.
One respondent said: ‘My paralegal would usually deal with making the applications to the Legal Aid Agency (LAA) but she is furloughed. I am not able to make any new ECF applications at this time. I also need to focus on bringing in private work to keep paying staff. The ECF cases are high workload but low fee and I always make a loss on them.’
PLP wrote to the Lord Chancellor on 16 April 2020 requesting changes to the scheme to accommodate the impact of the pandemic. Justice minister, Alex Chalk MP, replied on 10 May 2020 setting out the measures which had been introduced by the Ministry of Justice including: the relaxation of evidence requirements; the use of electronic signatures and submission of evidence by email; halting the pursuit of outstanding debts owed to the LAA; as well as regular meetings with key stakeholders. However, PLP’s report found that 80% of legal aid providers had been unaware of the measures implemented by the LAA in response to the pandemic. The three providers who had been aware of the measures indicated that they were ‘not nearly sufficient to address the problems with the ECF’. One provider even admitted that they did not use the scheme before the pandemic describing it as ‘so unworkable that we do not use it’.
Nevertheless, three quarters of the respondent providers (73%) thought that more should be done to improve the accessibility of the ECF scheme during the pandemic. With ‘local lockdowns’ across the country and the expectation of further restrictions over the winter, it is important for LAA to review the pandemic’s impact on the scheme so far and continue to allow flexibility around ECF applications.
