We are delighted to report that we have obtained Exceptional Case Funding from the Legal Aid Agency, which is enabling us to assist a vulnerable client with obtaining a financial settlement on divorce.
Trainee Solicitor, Simeon Bowen-Fanstone, who made the successful application to the Legal Aid Agency, along with Licensed Paralegal Gaynor Butler, explains:
“The Applicant in question satisfied the Means Test for Legal Aid, but had no evidence to produce relating to domestic violence, nor did the Applicant have an injunction order in their favour. The application for Exceptional Case Funding really was the Applicant’s last resort, as without Exceptional Case Funding, the Applicant faced the real possibility of being left homeless, or being left with a perilous financial future. In the circumstances of the matter, it would have been completely unfair and unreasonable – even impossible – for the applicant to bring the ancillary relief application without legal assistance”.
The Legal Aid Agency does not permit solicitors to grant Exceptional Public Funding by themselves. Each and every application must be completed on the Legal Aid Agency’s CCMS Online-Portal and supporting evidence must be uploaded electronically. Every application is considered on a case-by-case basis by the Exceptional Public Funding Assessment Team of the Legal Aid Agency. Simeon explains:
“I was cautiously optimistic that the application for Exceptional Case Funding would be successful, however the success-rate nationally for such applications is only around 13% – I was delighted to receive the email from the Legal Aid Agency confirming that the application was successful, and so was the client! I hope that the success of this application encourages other vulnerable people to make Exceptional Case Funding applications, and demonstrates that there is some light at the end of an extremely dark public funding tunnel”.
Our senior Partner, Jane Wilson, who is National secretary of Resolution, said “Resolution campaigned for exceptional case funding to become more readily available to people who would be unable to represent themselves in court. It is pleasing to see that it is indeed possible to obtain Legal Aid funding to help someone who really needs it.”
Legal Aid is usually only available for financial relief applications in very limited circumstances: a prospective applicant must be able to produce evidence that they have been a victim of domestic violence, or must have an injunction order in place. They must then also satisfy the Legal Aid Agency’s Means Test, which generally means they must be in receipt of a passporting benefit (income-related Job Seeker’s Allowance, income-related Employment and Support Allowance, Universal Credit or Income Support) or a very low income. If the prospective applicant is unable to satisfy BOTH of these tests, legal aid will not be available to them for a financial relief application. Our client was in receipt of income support, but did not have any merits criteria which would have given them automatic legal aid.
However, Exceptional Case Funding was available to our client, and is available to people in extremely limited circumstances. The test is whether human rights or European Union rights would be breached if they did not have legal aid. This would mean that it would be unfair or even impossible for a person to deal with a case themselves, either due to complexity, or because the person is less able to deal with it on their own (e.g. they might suffer from a learning disability). It could also be because the case is so important to that person that it is not fair for that person to do the case themselves. A combination of these factors could also mean that funding is required to avoid a breach of that person’s rights.
In our successful application, our client had also exhausted every other option open to them for resolving the dispute. For example, we were able to provide evidence to the Legal Aid Agency that they had attended mediation on seven separate occasions, and that mediators had written up a Summary of Proposals, which the client had brought to us on a previous attendance so that it could be drawn up into a Consent Order. However, despite a draft Consent Order being produced and sent to the opponent for approval, the opponent decided to reject the agreement which had been reached at mediation, and proposed an alternative financial settlement, which was rejected by our client. As we had previously been acting for the client under a CW5 Help with Mediation form, we could do no further work for the client, other than to suggest that they returned to mediation, which was rejected by the opponent. The opponent was also threatening that they would make themselves bankrupt in order to thwart the client’s attempts at reaching a financial settlement.
Making a Financial Application to Court really was the client’s only option, but without legal representation, this would have proved impossible for the client to do by themselves. The client could not understand, for example, that they could not simply carry on living in the former matrimonial home, because they could not afford to meet the outgoings. Completing a Form A, and particularly Form E, would have been beyond the client’s capabilities. During attendances, the client presented as nervous and confused, and we had to be very careful to break things down into simpler language to ensure that the client fully understood what we were telling them. The client would not have been able to go to Court, as a litigant in person, and ask for a financial order to be made. The client would likely have been easily confused by the Court process (lawyers themselves consider Form E to be unfriendly!) and unlikely to have been able to meet the deadlines imposed by the Court for dealing with the various stages of a financial application.
It would appear from other unsuccessful Exceptional Public Funding Applications made by our firm that the Legal Aid Agency places some importance on applicants producing evidence to show that they have exhausted all other possible methods for resolving the issues in dispute. In our successful application, we were able to demonstrate that the client had attended mediation, that a draft consent order had been prepared following an agreed Summary of Proposals and that there had been attempts at negotiation via correspondence.
In terms of making the application itself, it is a very similar process to making a normal application for Legal Aid via the CCMS portal. The Legal Aid Agency has made several welcome improvements to CCMS of late. For example, it was possible to upload all of our documentary evidence at the same time as making the Exceptional Public Funding Application, which saved time and meant that we did not have to wait for the LAA to process our application and send a notification requesting documents to be uploaded. In terms of processing applications, we have found that the LAA generally take about 3-4 weeks.
We hope that our successful application will encourage other Legal Aid firms to make Exceptional Public Funding Applications and to feel more positive about their chances of a successful outcome!
For more information contact one of our Family Lawyers today for your free initial meeting.
