The Lord Chancellor has now published guidance on exceptional cases in out of scope areas post April. These try to put the most restrictive emphasis on what cases might be brought. However what is absolutely not clear is who will be able actually to bring exceptional cases in those areas coming completely out of scope. As there will be no contracts in those areas and no specialist advisers/lawyers, who would actually be able to make a legal aid application in an out of scope area? Answers on a postcard please. Link to guidance below already posted by Patrick.
"Legal Action" with an article on the new provisions. Extract and link to full article below :
"28th February 2013
The Ministry of Justice (MoJ) has issued its first set of documents on the new guidance and rules for claiming legal aid from 1 April. Included in the documents is the Lord Chancellor’s guidance on claiming legal aid in exceptional cases.
Currently the exceptional funding rules are mainly used to grant legal aid for representation at inquests. Under section 10 of the Legal Aid, Sentencing and Punishment of Offenders (LASPO) Act 2012, the exceptional funding provisions are widened to include cases in which a failure to provide legal aid would breach the European Convention on Human Rights (ECHR) or European Union law. The document, Lord Chancellor’s exceptional funding guidance (non-inquests), seems to have been drafted with an emphasis on trying to discourage claims in civil cases brought under article 6(1) of the ECHR (right to a fair and public hearing). It argues that for civil legal aid there are only ‘certain very limited circumstances’ in which it will be required ‘in order to guarantee the effective right of access to a court in civil proceedings’, and then only in cases which involve the ‘determination of a person’s civil rights or obligations’.
The document cites ECHR decisions in tax disputes and immigration proceedings in which it was held that civil rights and obligations were not engaged. Perhaps in an attempt to head off cases related to the Welfare Reform Act 2012, it argues that cases which involve a ‘series of evaluative judgments’ about whether or not a claimant qualifies for a benefit would not engage article 6(1). To support this view the cases of Tomlinson v Birmingham City Council [2010] UKSC 8 (which concerns the provision of housing to a homeless person) and R (A) v London Borough of Croydon [2009] UKSC 8 (which concerns the provision of social services support to children) are cited.
Tom Royston, a welfare rights specialist and a former Law Centre® lawyer now training to be a barrister at Garden Court North Chambers in Manchester, describes the guidance as ‘contentious’......................"
