Since 12 January 2022, bereaved family members applying for legal aid (‘Exceptional Case Funding’) in relation to inquests have no longer had to undergo means assessment. Those who had previously been required to make financial contributions in order to receive legal aid of this kind will no longer have to do so.
This should be a positive step towards increasing the number of people eligible to receive legal aid in what will surely be one of the most difficult experiences of their lives. However, applicants currently still need to satisfy the difficult ‘merits’ test to convince the Legal Aid Agency to grant Exceptional Case Funding.
Merits test for Exceptional Case Funding for inquests
These essentially require a family member of the deceased to establish either that:
- This is an ‘Article 2’ type inquest (i.e. there is a duty to hold an investigation into whether the State has arguably breached its obligations under Article 2 of the European Convention on Human Rights, namely the ‘right to life’); or
- There is a ‘wider public interest’ in relation to both the applicant and the inquest. Basically, this requires the applicant to show that providing advocacy services for them during the inquest is likely to produce significant benefits for a class of people other than them and their families.
The future of the merits test
INQUEST and others have long been campaigning for automatic eligibility of family members for legal aid where a State body (such as an NHS trust) is also involved in the inquest and will be legally represented. Effectively, this would do away with the merits test in this type of case and would significantly expand the group of people entitled to legal aid for inquests.
On 31 March 2022, the House of Lords voted for an amendment to the Judicial Review and the Courts Bill which would provide an automatic entitlement to legal aid in the circumstances I have mentioned. If this became law, then many of the people we represent in inquests where an NHS Trust’s care has been called into question (and where the Trust itself is legally represented) should be entitled to legal aid to cover their legal costs.
Sadly, there is no guarantee that this change will come into effect, as the Government has previously come out against expanding eligibility in this way. The Bill is currently due to go back to the House of Commons on 21 April 2022, at which point MPs will vote on whether to keep the Lords’ amendment in the bill.
How can we help?
Lucy Wilton is a Partner in our expert Medical Negligence team, specialising in inquests and compensation claims.
If you have any questions in relation to the topics discussed in this article, please contact Lucy or another member of the team in Derby, Leicester, or Nottingham on 0800 024 1976 or via our online form.
Contact us