The implications for access to justice of the Government's proposals to reform legal aid - Human Rights Joint Committee Contents

4  Borderline cases


219. Currently a case must satisfy the merits criteria in order to qualify for civil legal aid. These criteria are used to determine whether funding a case is justified. They include the expected costs of the case, the outcome sought and the likelihood that the case is successful. The LAA assesses the predicted outcome of the case, often in consultation with the solicitor handling the case. The LAA currently categorises cases into one of the following:

    "very good", which means an 80% or more chance of obtaining a successful outcome;

    "good", which means a 60% or more chance, but less than an 80% chance, of obtaining a successful outcome;

    "moderate", which means a 50% or more chance, but less than a 60% chance, of obtaining a successful outcome;

    "borderline", which means that the case is not "unclear" but that it is not possible, by reason of disputed law, fact or expert evidence, to (a) decide that the chance of obtaining a successful outcome is 50% or more; or (b) classify the prospects as poor;

    "poor", which means the individual is unlikely to obtain a successful outcome; or

    "unclear", which means the Director cannot put the case into any of the categories in paragraph (i) to (v) because, in all the circumstances of the case, there are identifiable investigations which could be carried out, after which it should be possible for the Director to make a reliable estimate of the prospects of success.[188]

220. Cases must generally have a 50% chance of success ("moderate" or above) in order to satisfy this part of the merits criteria. However, an exception currently applies for certain high priority cases, in which the prospects of success are "borderline" rather than "moderate". As the original consultation paper explains:[189]

"[...] there are certain types of family or housing cases which will receive funding with borderline prospects of success. In other cases funding will be available if there is a borderline prospect of success and the case has special features (that is to say it is a case of significant wider public interest or a case with overwhelming importance to the individual). Funding may also be granted in public law claims, claims against public authorities and certain immigration and family claims which have these special features or if the substance of the case relates to a breach of ECHR rights."


221. The Government proposed, in its initial consultation, that cases which were classified as having a "borderline" prospect of success would no longer be eligible for funding. In other words, it proposed to abolish the exceptional "borderline" prospects of success category for high priority cases. In future, all cases to which the merits test applies must have "moderate" or better chances of obtaining a successful outcome. Cases which have been refused funding would be able to appeal the decision to an Independent Funding Adjudicator. The Government outlined that this proposal would also apply to asylum seeker cases. The Government states that it has considered Council Directive 2005/85/EC on minimum standards on procedures in Member States for granting and withdrawing refugee status.[190]

222. The Government's consultation also outlined that certain cases would remain exempt. The following cases are exempt from the merits criteria:

    Under the Civil Legal Aid (Merits Criteria) Regulations 2013 ("Merits Regulations"), these are:

    Certain family cases under regulation 11(9);

    Mental health cases under regulation 51;

    Public Law children cases under regulation 65(2)(a);

    Certain family cases (where the individual has benefited from legal aid in the country of origin) under regulation 65(2)(b);

    EU Maintenance Regulation cases under regulation 70; and

    Hague Convention 2007 cases (concerning international recovery of child support and other forms of family maintenance) under regulation 71.[191]

223. Having considered the responses to the consultation, the Government decided to proceed to remove legal aid for all cases assessed as having borderline prospects of success.[192]

The rights engaged

224. Like both the residence test and the restriction on criminal legal aid for prison law cases considered above, this proposal potentially affects the right of access to court because it makes it more difficult for certain cases to obtain legal aid funding and therefore to be brought to court. On the Government's estimate, it will result in approximately 100 fewer cases a year being funded by legal aid.

225. Since this is already an exceptional category of funding, available only in relation to high priority cases which have a significant wider public interest, or which have a significant impact on the individual concerned in areas such as asylum or housing, this proposal is very likely to affect the ability of individuals to secure effective access to court in relation to human rights claims. Indeed, the Government, in its response to the consultation, recognises that the proposal will have an impact in cases which have important consequences for the individuals concerned.[193]

Legitimate aim

226. The purpose of the Government's proposal is "to direct the limited legal aid budget at the cases which really justify public funding by requiring a case to have at least 50% prospects of success in order to warrant public funding.[194] The Government considers it to be a reasonable principle that, to warrant public funding, a case should have at least 50% prospects of success. It says that "the merits test aims to replicate the decisions that somebody who pays privately would make when deciding whether to bring, defend or continue to pursue proceedings. We do not think that a reasonable person of average means would choose to litigate in cases which only have a borderline prospect of success and we do not think it is fair to expect taxpayers to fund such cases either."

227. As with the other proposals that we have considered in this Report, the Government's proposal in relation to borderline cases clearly pursues a purpose which is recognised as a legitimate aim for the purposes of justifying limitations on the right of effective access to court. The question, again, is whether the impact of the proposal on the right of access to court is proportionate, which requires consideration of the sorts of cases likely to be affected by the proposal, the evidence demonstrating the benefits to be secured by it, and the safeguards against the risk that the reform will lead to cases not being brought where human rights law requires that they should be.


228. Critics of the proposal suggested that the Government has failed to consider the importance of the right at stake as against the proportionality of funding a case. One written submission to us stated:

    "To apply this blanket rule is likely to result in significant injustice. In some borderline cases funding is justified because of what is at stake. Consider a case in which a child's entire future depends on the chance to judicially review a local authority. However, for whatever reason, prospects are borderline. The reasonable paying private client would fund such a case."[195]

229. The Ministry produced the following table, showing the distribution of case types for borderline cases in 2011/12:[196]
Case typeProportion (%)
Domestic Violence 8
Housing 41
Immigration and Asylum 2
Private Law Children Act 3
Other Public Law 8
Other Public Law Children 38

230. The Bar Council criticised the table overall,[197] but noted that it shows that many issues within this group of cases engage human rights issues, in particular cases involving the prospect of a loss of a person's home —engaging the human right to respect for the home, and cases involving the prospect of the loss of a person's children into the care system—engaging the right to respect for family life. They concluded: "Of all the measures [...], this one is therefore likely to have the most immediate and adverse effect on human rights."

231. In addition, it has been argued that borderline cases "often involve key points of law that need testing, to see whether new facts or perspectives may change the courts' perspective on a particular type of case."[198] An example of this is the housing case of Pinnock[199] which was the culmination of three successive, legally aided cases.[200]

232. Richard Drabble QC highlighted concerns about possible inequality of arms:

    these proposals threaten to produce a situation in which the Executive can always access the higher courts if the lower courts establish a proposition which it wishes to challenge on appeal; but claimants do not have the same ability. The system will or may become institutionally "pro-executive". In this connection, it is necessary to bear in mind the effect of a grant of public funding in providing cost protection for a claimant.

233. The Lord Chancellor when asked about the effect of the proposals on development of the common law, told us:

    we have looked very carefully at what the legal position is, we have looked to Strasbourg case law, and we have formed a view this is a sensible measure. It is a balance: you are absolutely right that there are interesting cases debated in law, but we have only so much money. The most important thing, from my point of view, is to ensure that the legal aid system provides for access to justice where it is necessary to do so, and that I use the resources we have available, which are still per capita far more than any other common law system in the world.

234. We were told by our witnesses that the Legal Aid Agency scrutinises the merits of borderline cases closely, and funds very few borderline cases, in effect exceptional cases.[201] The Ministry estimates that this proposal will save £1 million, based upon an estimated reduction of 100 cases per year.[202]

235. The Government accepts that many of the cases affected by the removal of exceptional funding for cases with borderline prospects of success will include determination of human rights issues. In our view, this raises equality of arms issues, and a potential problem in relation to the creation of precedent to guide lower courts which will in turn affect a larger number of cases.

236. We were told in evidence by the Government that only cases that could be considered exceptional on their merits were funded as borderline cases, meaning that such cases could fall within the exceptional funding scheme criteria. However, the problems with exceptional funding that we identified in the previous chapter means that the Government cannot rely upon section 10 as currently operating in order to meet its obligations to provide practical and effective access to justice.

237. The possible saving from the proposal to exclude borderline cases is estimated to be £1 million, and, given the small size of this saving, the accuracy of this estimate is questionable, particularly since the figures produced by the Government appear to consider one year of funding only (2011/12) and do not appear to take into account the likelihood that some of these 100 cases could qualify for section 10 exceptional funding if that mechanism were operating satisfactorily. In view of the significance of the cases likely to be affected by this proposal, we recommend retaining the Legal Aid Agency's discretion in these cases, or, if it must be changed, tightening the requirements rather than removing the possibility of such funding altogether.

188   Transforming legal aid: delivering a more credible and efficient system, para 3.84  Back

189   Ibid., para 3.85. Back

190   Transforming legal aid: Delivering a more credible and eficient system, paragraph 3.89--"This requires the Government to provide legal assistance for those refused asylum. However article 15(3)(d) of the Directive makes clear that this obligation only extends to those appeals which are 'likely to succeed'." Back

191   Transforming legal aid: delivering a more credible and efficient system-footnote 43 Back

192   Next steps, paras 2.21-2.23 and Annex B paras 157-185. Back

193   Ibid., para. 177. Back

194   Ibid., para. 2.21. Back

195   Helen Elizabeth Gill para 32 Back

196   Impact Assessment-MoJ194 Source: LAA closed cases in 2011/12, adjusted for LASPO reforms. Back

197   The table gives no information about the number of cases funded in each category, which cases succeeded (in whole or in part) or why those that failed were unsuccessful. Confining the data to a single year makes it impossible to derive anything useful from it." Back

198   Mission and Public Affairs Division, Archbishop's Council Back

199   Manchester City Council v Pinnock [2011] UKSC 6 Back

200   London Borough of Harrow v Qazi [2003] UKHL 43; Kay v London Borough of Lambeth [2006] UKHL 10; and Doherty v Birmingham City Council [2008] UKHL 57 Back

201   Helen Gill Back

202   Transforming legal aid: Next steps, paragraph 172  Back

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Prepared 13 December 2013