Exceptional Case Funding For Inquests No Longer So Exceptional

Legal aid for inquests is currently available only through the Legal Help scheme or by way of Exceptional Case Funding (‘ECF’). Prior to 12 January 2022, family members applying for ECF for an inquest into the death of a loved one had to undergo means assessment, as well as a (difficult to satisfy) merits test. 

However, the former has now been abolished for all ECF inquest applications made after that date. Furthermore, those who had previously been granted ECF but had to make financial contributions no longer have to do so.

This is hopefully 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 will still need to overcome the merits hurdles set out in The Civil Legal Aid (Merits) Criteria Regulations 2013 (and expanded upon in the Lord Chancellor’s Exceptional Funding Guidance (Inquests)).

Merits test for ECF for inquests

These essentially require an applicant to establish either that:

• This is an ‘Article 2’ type inquest (i.e. there is considered to be 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 them to show that provision of advocacy services for that individual for the inquest is likely to produce significant benefits for a class of persons other than the applicant and their family.

The change, therefore, falls far short of what INQUEST and others have been campaigning for, namely 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.

What does ECF cover for inquests?

For those who pass the merits test, ECF can cover:

• Instruction of an advocate;
• Preparation for hearings (including a conference with counsel); and
• Advocacy at the pre-inquest review and/or inquest hearing.

It can also cover another legal representative attending the hearing(s), if this is considered justified.

Are there any limitations to ECF?

There are various limitations to ECF including that:

• It will not cover the drafting of witness statements or written submissions to the coroner, nor other work which may be beneficial prior to hearings but fall short of ‘advocacy preparation’. If the applicant wishes to obtain legal aid to cover the costs involved in those steps, they would need to apply for Legal Help. Fortunately, if a successful ECF application is made after 12 January 2022, Legal Help can also be available without means-testing.
• It will not cover experts’ fees, although if the coroner has concluded that the expert must attend (because their evidence is relevant to the investigation) then the coroner should pay the expert’s fee for attending the hearing.
• It will not cover interpreters’ fees, but again the coroner should pay these.

It is important to be aware that applications for ECF can take a long time to be processed.  The Legal Aid Agency’s Provider Pack (Inquests) Jan 2022 suggests that they “aim” to make a decision on such applications within 25 working days, i.e. five weeks.

If there is any urgency to the application, e.g. an imminent inquest hearing, then this should be made clear when the application is submitted (which is done on form CIV ECF2 (INQ), sent by e-mail to [email protected]). However, the Legal Aid Agency has made clear that they are unlikely to consider an impending pre-inquest review to be urgent.

A key aspect to make clear to applicants is that, even though ECF will no longer be means-tested, the statutory charge will apply to any compensation that they receive as a result of related legal proceedings. For example, if they make a successful clinical negligence claim as a result of the circumstances giving rise to the death, then the Legal Aid Agency could seek to recoup from the compensation any shortfall in the inquest-related costs recovered from the defendant in those proceedings.