Government removes means test for exceptional case funding for Inquests

The Government has announced that from the 12th January 2022, exceptional case funding for Inquests will no longer be means tested.

Prior Position

Prior to January 2022, all bereaved families requiring legal representation at an Article 2 Inquest, had to go through a process, for the Legal Aid Agency to assess their means before funding was made available. The current Legal Aid application requires a full means assessment of the family to be carried out to secure funding to cover all works for the preparation prior to, up to and including the Inquest.

A report published by the Commons Justice Select Committee in May 2021 highlighted that bereaved families should not have to go through such a process to try and secure funding, especially when Public Authorities are fully represented using full taxpayer funding.

The report suggested that it was;

"Unacceptable that inquests into multiple deaths following a public disaster, provide no automatic access to legal aid for families, often when such cases are extremely complex".

Examples highlighted in the report included the inquests following the Hillsborough and MEN Arena Disasters, for which the bereaved families had to go through a lengthy means assessments to try and secure funding for representation. This prompted MP's to call on the Government to try and establish a 'merits only' style assessment for families to receive legal aid at Inquests. They argued that:

"Equality of arms is a fundamental requirement to allow families to participate fully in the inquest process. This calls for both families and state bodies to have the same access to legal representation throughout the process by removing the means assessment hurdle families currently have to overcome"

The Commons Justice Select Committee have now implemented a non-means tested legal aid for families at inquests, with a deadline for roll out expected to commence in January 2022 to implement the change

New Position

From 12 January 2022, the Government has announced that bereaved families facing Article 2 inquests will no longer face a means test, and that full funding will now be made available to families who previously faced paying substantial costs towards legal representation. The means test will be removed, and families entitled to exceptional case funding (ECF) will no longer have to pay. Funding is also expected to be made available for cases that sit outside the ECF criteria, but where the actions of state bodies require scrutiny, as proposed in the amendments to the Judicial Review and Courts Bill.

Exceptional Case Funding

When the Government removed public funding (Legal Aid) for a lot of proceedings, it also introduced Exceptional Case Funding. This was a safety net that allowed applications to be made, on a case-by-case basis, for matters that justified public funding.

The case would need to have special merit that required funding and representation at an inquest, based on the person's specific circumstances, including what is hoped to be gained by attendance and assistance with supporting an individual through the inquest. The Legal Aid Agency require the following to be satisfied before funding will be provided:

1. The legal representative must have a contract that allows it to do Legal Aid work in this Category of law. If not, it must explain why it is necessary for the effective administration of justice to conduct the matter.
2. Set out the basis for exceptional funding.
3. The work that will need to be done
4. Why the failure to provide legal aid for this work will breach a convention right.
5. The importance of the issues to the client.
6. The complexity of the case
7. The capability of the individual to represent themselves, taking into account their education skills, experience, any relevant disability or capacity issues

In response to the Justice Committee inquiry, the Government announced:

"The change is a huge step forward. It will make the process fairer for many bereaved people, who face teams of state lawyers at inquests that are defending the interests of organisations, who may have caused or contributed to the death".

Although this is a welcome shift by the Government, that may help ensure families rightfully have a meaningful voice and are able to contribute fully to the process, obtaining funding is not as straight forward as it seems. The case will have to be exceptional and unique.