Exceptional case determination
Legal Aid Sentencing and Punishment of Offenders Act 2012 s 10 represents the only way that a person can obtain legal aid for civil legal services (civil legal aid), outside the narrow spectrum of cases – domestic ‘violence’, forced marriage etc – covered by Part 1 Sch 1 of the Act.
Legal aid may be available as an ‘exceptional case’ (LASPOA 2012 s 10(1)) where funding is not otherwise available under the relatively narrow range of representation under the main civil legal aid provisions of LASPOA 2012 Part 1 Sch 1 (available civil legal services).
LASPOA 2012 s 10(2) provides:
(2) This subsection is satisfied where the Director—
(a)has made an exceptional case determination in relation to the individual and the services, and
(b)has determined that the individual qualifies for the services in accordance with this Part,
(and has not withdrawn either determination).
LASPOA 2012 s 10(3) defines what is an ‘exceptional case’ (as further explained by Black LJ in JG (below)):
(3)For the purposes of subsection (2), an exceptional case determination is a determination—
(a) that it is necessary to make the services available to the individual under this Part because failure to do so would be a breach of—
(i) the individual’s Convention rights (within the meaning of the Human Rights Act 1998), or
(ii) any rights of the individual to the provision of legal services that are enforceable EU rights, or
(b) that it is appropriate to do so, in the particular circumstances of the case, having regard to any risk that failure to do so would be such a breach.
It is important to stress here that ‘exceptional’ is not a general term – as eg rare, highly unusual etc – but refers solely to the fact that grant is required to comply with UK responsibilities under Human Rights Act 1998. If legal aid is required for that purpose it is, by definition, ‘exceptional’ and s 10 is satisfied.
The main rights under the Convention in play in most cases will be Art 6(1) and 8:
Right to a fair trial
1 In the determination of his civil rights and obligations or of any criminal charge against him, everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law. Judgment shall be pronounced publicly but the press and public may be excluded from all or part of the trial in the interest of morals, public order or national security in a democratic society, where the interests of juveniles or the protection of the private life of the parties so require, or to the extent strictly necessary in the opinion of the court in special circumstances where publicity would prejudice the interests of justice.
Right to respect for private and family life
1 Everyone has the right to respect for his private and family life, his home and his correspondence.
2 There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.
Freedom from discrimination (Art 14) and freedom of expressions (Art 10) will also be significant, in appropriate contexts.
Children and Convention rights
The significance of children in any Convention assessment must be recalled always: nothing may be given ‘greater weight’ than their interests says the Supreme Court (see Lord Kerr below). If a balance is required to be struck between their, and other, Convention rights (Convention ‘proportionality’), this must be conducted by measuring ‘the nature of any impact on the child’ (per Lord Steyn in Re S (Identification: Restrictions on Publication)  UKHL 47,  1 FLR 591 (at para ).
The interests of the child are as much a primary consideration for the LAA decision-maker as for any other agency (eg local authority of government department) (ZH (Tanzania) v Secretary of State for the Home Department  UKSC 4 at para ). The balance must be drawn between respect for the child’s private life (Art 8) and (say) the right of the parent for a fair trial (Art 6). In H(H) v Deputy Prosecutor of the Italian Republic, Genoa (Official Solicitor intervening)  UKSC 25 Lord Kerr explained the primacy of a child’s interest:
 … It is unquestioned that in each of these cases, the children’s article 8 rights are engaged. As a matter of logical progression, therefore, one must first recognise the interference and then consider whether the interference is justified. This calls for a sequencing of, first, consideration of the importance to be attached to the children’s rights (by obtaining a clear-sighted understanding of their nature), then an assessment of the degree of interference and finally addressing the question whether extradition justifies the interference….
 ….no factor must be given greater weight than the interests of the child.
Convention rights: exceptional cases
In JG v Lord Chancellor and ors  EWCA Civ 656 Black LJ and the Court of Appeal considered s 10 in the context of legal aid and payment for an expert’s fees in civil proceedings. The meaning of ‘exceptional’ in s 10(3) was explained by Black LJ at para . She stressed that, as a matter of ordinary statutory construction, all that s 10(3) does is to produce a ‘description … not a test or additional hurdle’ for the applicant (and see Coulson J in M v Director of Legal Aid Casework & Ors  EWHC 1354 (Admin) at para ).
Both judges stress the ordinary meaning of the words in s 10: that ‘exceptional’ there means only that the application is outside Part 1 of Sch 1, not the facts of the application are in some way ‘highly unusual’ or out of the ordinary.
The QB Divisional Court (Moses LJ, Collins and Jay JJ) has gone further. In R (ota The Public Law Project) v The Secretary of State for Justice, the Office of the Children’s Commissioner (intervener)  EWHC 2365 (Admin) (at para ) Moses LJ defined s 10 as catering for applications for funding as two-fold: mandatory (where a ‘substantial interference’ with an Art 6 right might occur) and discretionary (where there is ‘a risk of such breach’).
I understand that the PLP case and Gudaviciene below may be under appeal to the Court of Appeal; but for the present they represent the law.
LASPOA 2012 s 4(3) includes amongst the duties of LAA decision-makers, that they must ‘(b) have regard to guidance given by the Lord Chancellor about the carrying out of those functions’. Guidance must be in accordance with the law. In particular, it is a basic principle of administrative law that a public body may not ‘fetter’ a discretion entrusted to it by statute, since Parliament confers discretion to ‘promote the policies and object of [an] Act’ (Padfield v Minister of Agriculture, Fisheries and Food  AC 997).
Guidance may not impose inflexibility where its empowering statutory provision does not provide for it, nor limit the scope of a decision-maker’s discretion beyond that which is anticipated by the statute (R v Secretary of State for Department for the Home Dept exp Venables  AC 407,  UKHL 25 at 496-7).
Lord Chancellor’s exceptional funding guidance (non-inquests) (undated) (‘the Guidance’) represents guidance under s 4(3). Its legality was considered by Collins J in Gudanaviciene v Director of Legal Aid Casework and the Lord Chancellor  EWHC 1840 (Admin). This was a series of immigration cases; but the principles applicable to guidance to decision-makers apply in all grants of civil legal aid.
Collins J describes the Guidance thus:
 … [It] lays down some principles which the Director is to apply and some of those are said by the claimants to be unlawful. Paragraph 6 notes that s10(3)(b) does not provide a general power to fund cases which fall outside the scope of legal aid. It is, it is said, ‘to be used for rare cases’ where the risk of the breach of material rights ‘is such that it is appropriate to fund [para 7 which is cited in full including]:
(7) … Rather, section 10(3)(b) should be used in those rare cases where it cannot be said with certainty whether the failure to fund would amount to a breach of the rights set out at section 10(3)(a) but the risk of breach is so substantial that it is nevertheless appropriate to fund in all the circumstances of the case. This may be so, for example, where the case law is uncertain (owing, for example, to conflicting judgments).
He points out that the Guidance bases its approach to grant of legal aid by reference to Airey v Ireland (1979) 2 EHHR 533 and X v UK (1984) 6 EHRR 136. From the latter case the Guidance derives its ‘practical impossibility or obvious unfairness’ test (para ). But is this the correct test? Collins J says it is not:
 The ‘overarching question’ posed in the Guidance is ‘whether the withholding of legal aid would make the assertion of the claim practically impossible or lead to an obvious unfairness in proceedings.’ This is said to be a very high threshold. As I have said, it is based on X v UK. In setting out this test, the Commission referred to Airey v Ireland.
After full consideration of relevant case law Collins J deals with the ‘threshold’ question at para .
• There must be ‘effective access to a court’: for example a litigant must be able to present all relevant evidence and ‘engage with the process’ (AK & L v Croatia (Application No 37965/11: final on 8 April 2013));
• There must be ‘overall fairness’; and
• That where appropriate a decision-maker must have in mind Art 8 (respect for family life) to which the Guidance, he says, does not refer adequately (para ; and see H(H) and comments of Lord Kerr above).
He held that the X v UK ‘practically impossible’ test (used by LAA decision-makers) sets the bar ‘too high’ (para ) for s 10; and that to this extent the Guidance is unlawful (para ).
Overriding of fundamental rights
Further it is necessary here to bear in mind two further basic principles of administrative law: first, the ‘fetter on discretion’ point made in Gudaviciene (above); and, secondly, that fundamental rights of an applicant for legal aid can only be overridden by specific statutory provision. This point was made by Moses LJ in R (ota PLP) (above). The case concerned delegated legislation proposed by the Lord Chancellor to limit legal aid to those with a close connection to the United Kingdom (what he terms ‘our people’). PLP said the Lord Chancellor had no power to do this.
The minister accepted his statutory instrument as discriminatory, but was such discrimination lawful? Reading Art 14 (discrimination) with Art 6(1) the Court of Appeal said the delegated legislation was unlawful. Thus of the right to legal aid for representation in court proceedings Moses LJ said:
 The obligation of a state to provide legal assistance in some circumstances was not in dispute. The principle is now well established both in domestic and Strasbourg jurisprudence. The right to legal aid can be invoked by virtue of Art 6(1) of the Convention (Pine v Law Society (No 1)  EWCA Civ 1574). The duty to provide legal aid in some cases is no more than an aspect of the principle that the state is under an obligation not to impede access to court. Section 10 of LASPO is the provision adopted to meet the United Kingdom’s obligation to provide legal assistance in those cases where a failure to do so would risk a breach of Convention or EU rights.
A person speaking only a foreign language in English courts, might be in more need of representation that someone who can at least read the language (a point which recurs in Q v Q  EWFC 7 and recurs in the later version of that case). The same would apply to a person confronted with difficult legal principles or of procedure.
Grant of legal aid: ‘rights that are practical and effective’
In JG black LJ cites Muscat v Malta (2012) Application no 24197/10  ECHR 1601. This she says is the modern authority for the proposition that there is no absolute obligation under European Convention 1950 to make legal aid available for all civil disputes. That is not the only criterion (as Collins J also demonstrates). Thus Muscat says that the Convention is concerned that mere lip-service to rights is not paid by legislators; but the Convention:
 … is intended to guarantee not rights that are theoretical or illusory but rights that are practical and effective. The right of access to court includes not only the right to institute proceedings but also the right to obtain a “determination” of the dispute by a court. It would be illusory if a Contracting State’s domestic legal system allowed an individual to bring a civil action before a court without ensuring that the case was determined by a final decision in the judicial proceedings.
Access to the court must include the ability to see the case through to a ‘determination’; and Muscat (para ) breaks down entitlement to legal aid as follows:
(1) That ‘assistance [is] indispensable to effective access to court’ due to the complexity of procedure or the facts or law related to the case;
(2) Legal aid should be available guaranteed – part of a State’s ‘obligation’ – where litigants need it to secure access to the courts to ensure they can have effective enjoyment of rights guaranteed under Art 6(1); and
(3) There should be active intervention by a State to provide assistance when ‘problems of legal representation are brought to the attention of the competent authorities’.
Exceptional case determination: application
If the language of s 10 is construed within the terms of the policy behind the section – to ensure United Kingdom complies with its convention obligations under Art 6 – then it can be seen that ‘exceptional’, as Black LJ explains in JG (at ) describes only a category of grant.
As the law stands the Lord Chancellor’s Guidance is unlawful to the extent that it seeks to fetter a decision-maker’s discretion in grant of legal aid. Any applicant for family proceedings legal aid where, for example, his/her access to the courts is for practical purposes impeded and the fairness of a trial made impossible, can – subject to financial eligibility – rely on s 10(3) to seek a grant of legal aid. The threshold for determination of coming within s 10(3) is, as Collins J explains in Gudaviciene, that a litigant can properly and fairly engage with the court process (paras  and ).