Exceptional case funding
Legal Aid is only available for CICA claims under a grant of Exceptional Case Funding (ECF).
The Legal Aid Agency routinely refuses ECF applications submitted for the purpose of preparing and submitting the initial application to CICA. The Legal Aid Agency’s position is that a victim of trafficking does not require legal assistance to submit an application. It will suggest that if the client does need assistance, then they can obtain this via Victim Support.
However, Victim Support, while able to assist with completing the online application, cannot provide legal advice and have stated that they are unable to prepare and submit legal submissions based on the claimant’s trafficking status. It will, therefore, be necessary to set out in detail in the ECF application why the client requires the assistance of a solicitor:
- Does the client have English as a first language?
- Does the client have psychiatric or mental injury; can they correspond with CICA unaided?
- Does the client have access to other assistance such as from a support provider? If so, in reality, how much assistance can they provide? Are they willing to write a letter confirming that they cannot provide the level of legal advice and assistance required?
- Are there any CICA rules/criteria that the client is likely to fall foul of in the absence of legal submissions, e.g. failure to report to the police, etc?
ECF is more easily obtained where the application has already been submitted and funding is sought to submit a review or proceed to the First-tier Tribunal. In ATLEU’s experience while an application for funding to submit a review or appeal will initially be refused, it will generally be granted on review.
The Legal Aid Agency will grant a certificate of funding, so it is possible to obtain counsel’s advice in respect of the preparation of a review and, of course, if the matter proceeds to an appeal, advocacy will be covered.
Refusal of ECF
The Legal Aid Agency will refuse applications on the basis that the CICA scheme is discretionary and does not involve a determination of a civil right or obligation due to the client, and so there is no requirement for them to fund. Reliance is placed on Tomlinson v Birmingham City Council  UKSC 8 when they refuse applications. However, the Court of Appeal in the matter of JT v First Tier Tribunal (2018) EWCA Civ 1735 found that CICA applications did involve the determination of a right due to the applicant, further that Article 6 ECHR was engaged. Therefore, refusals of ECF where the Legal Aid Agency cite Tomlinson should be challenged.
Similarly, the Legal Aid Agency may seek to suggest that ECF is restricted solely to those cases where there is to be a determination of a civil right or obligation. However, R (Gudanaviciene and Others) v The Director of Legal Aid Casework and The Lord Chancellor  EWCA Civ 1622, confirms that this is too narrow a view, the full nature and scope of the convention rights referred to under Section 10(3)(a) of LASPO are to be considered. This suggests that status as a victim of trafficking is relevant as to whether the ECF criteria are met. It is worth referring to Hounga v Allen  UKSC 47 and Chowdury & Others v Greece (Application No. 21884/15) both of which are examples of cases in which the courts found that there was a requirement to give effect to international obligations to victims of trafficking.
Where an application is refused it is possible to seek a review of this decision. But unlike an application for in scope legal matters, there is no provision for referral to the Independent Funding Adjudicator. When a review is submitted, a request should be made, that if funding is not granted, that the decision maker set out each and every ground of refusal.
Judicial Review of a negative ECF Decision
A refusal by the Legal Aid Agency to fund an application to CICA is, of course, subject to the Legal Aid Agency’s internal review process, but thereafter it is possible to serve pre-action correspondence and issue judicial review proceedings.
It is possible to obtain legal aid to pursue judicial review proceedings against the Legal Aid Agency following a failure to grant ECF. However, the success of any application for funding judicial review of the decision made by the Legal Aid Agency will of course depend on the strength of the particular facts of the case.
A practice has arisen of the Legal Aid Agency withdrawing the ECF refusal when pre-action correspondence is sent and then making a new negative decision on a different basis, if this happens more than twice it may be possible to argue that such an approach amounts to an abuse of process. Please contact firstname.lastname@example.org if this is a situation you are encountering.