Assessment of ‘borderline’ and ‘poor’ prospects cases changes following judgment.
On 27 July 2015, an amendment to the civil legal aid merits regulations came into force. This follows the judgment in the case of IS v The Director of Legal Aid Casework and The Lord Chancellor.
The amendment affects all civil legal aid cases assessed as having ‘borderline’ or ‘poor’ prospects of success, including exceptional funding cases. As a result, legal aid may now be provided for some of these cases.
When could legal aid be provided?
Legal aid may now be provided where the Director of Legal Casework is satisfied that it is necessary or appropriate to determine that the prospects of success criterion is met because this would prevent a breach of the applicant’s rights under the ECHR or EU law.
More information is available in paragraph 2 of the regulations – link below.
All other funding criteria stay the same; and cases assessed as having ‘very poor’ prospects (that is less than 20%) will be refused legal aid.
How will this impact the application process?
Please continue to make your applications to the Legal Aid Agency (LAA) using the relevant legal aid application form or CCMS. Please confirm that you:
- have assessed the case’s prospects as ‘borderline’ or ‘poor’ and also
- consider that the prospects of success criterion should be met to prevent a breach of the applicant’s rights
If using CCMS, please send an e-mail to the address below alerting us to the application and put the CCMS case reference number in the email header.
Additional information required
If not already done so, you need to provide information relating to the prospects of success test, particularly the:
- importance of the case to the client
- complexity of the proceedings, area of law or evidence (specific information is required)
- court, tribunal or forum where the case will be heard
- client’s ability to present their case effectively (considering education, relevant skills, experience and disabilities, and general capability)
- need for effective access to justice or to avoid obvious unfairness
Please provide this in the relevant form – as part of the statement of the case – or in a cover letter.
Applications for “poor” or “borderline” determinations should be sent to:
HR&EUInscopeCases@legalaid.gsi.gov.uk for cases covered by legal aid
ECF@legalaid.gsi.gov.uk for exceptional funding cases
ECF Helpline: 0203 334 6060