Legal Update: Bereaved families will find it easier to obtain legal aid funding following proposed changes to exceptional case funding guidance
The Ministry of Justice has announced that its exceptional case funding guidance will be changed to make it easier for families, whose loved ones have died in custody, to obtain legal aid funding for representation at inquest.
Background
The purpose of an inquest is to establish how a deceased person came by their death. Unlike civil or criminal proceedings, which are adversarial, inquest proceedings are inquisitorial and the involvement of the deceased’s family members in the inquest process is entirely voluntary.
Legal aid for families at inquest is only available in limited circumstances and subject to strict financial eligibility requirements. Legal Help funding is available to cover advice and assistance with the preparatory work associated with an inquest, but it falls short of funding advocacy at the inquest itself. The Government’s justification for this has been that, save in exceptional circumstances, the relative informality of inquests and their inquisitorial nature means that it is not necessary for bereaved families to be legally represented.
In the majority of cases families are content not to take an active role in the inquest process, however, where an inquest concerns a controversial death involving a state agency (such as a death in state detention) there have been calls for families of the bereaved to be granted legal aid funding for representation at inquest irrespective of financial eligibility requirements.
Funding for legal representation at inquest is only available to bereaved families if they meet the criteria for ‘exceptional case funding’, a scheme which is, in practice, extremely restrictive in scope. There has been widespread criticism from families, practitioners and campaign groups that the Legal Aid system creates ‘inequality of arms’ with unrepresented families placed at a disadvantage when faced at inquest with state bodies such as the police, NHS Trusts and the prison service who are routinely legally represented at public expense.
Changes to Lord Chancellor’s Exceptional Funding Guidance for Inquests
On 18th June 2018 the government bowed to public pressure and issued revised guidance to legal aid caseworkers when making determinations about eligibility in inquest cases, click here for further details.
According to the Ministry of Justice, the revised guidance is intended to make it easier for families to obtain funding for representation at inquest for non-natural deaths or suicides occurring in police detention, prison or in a mental health unit. Caseworkers must now give particular consideration to the distress and anxiety the bereaved families are suffering when deciding whether to apply the financial means test. Financial eligibility will be based on an assessment of applicant’s financial means without regard to the means of other family members.
A Ministry of Justice spokesperson said:
We understand the inquest process can be difficult and have every sympathy for the family of the deceased. These changes will reduce the stress and anxiety as far as possible for cases involving deaths in custody. We have committed to reviewing the availability of legal aid for inquests more widely and intend to publish our findings later this year.
These changes will be will be welcomed by those representing families at inquest, and come in advance of a ‘wide ranging’ government review of the availability of legal aid for inquests generally. However, given that deaths in custody represent a very small proportion of all deaths reported to coroners (2% in 2017) the changes are unlikely to have a substantial impact on the public purse.
What are the grounds for Exceptional Case Funding (ECF) at inquest?
There are two grounds for ECF:- 1. where legal representation is required by Article 2 ECHR 2. where there is a ‘wider public interest determination’ by the Director of Legal Aid.
Where the circumstances of a death give rise to a suspicion that the State has breached the deceased’s Article 2 right to life, this gives rise to a duty on the state to carry out a thorough, independent and effective investigation into the death. This is known as the Article 2 procedural duty. The case law in the area of the Article 2 is complex and evolving however it has identified at least three categories of cases which automatically trigger the Art 2 procedural duty. These categories include:-
A death falling outside of these categories may still trigger the procedural duty if the circumstances of the death otherwise indicate an arguable breach of Article 2.
Where the Article 2 procedural duty is triggered, legal aid funding for representation at inquest may be available to bereaved families if the Legal Aid Agency considers that the individual facts and circumstances merit it, which includes consideration of (i) the nature and seriousness of the allegations against state agents (i.e. gross negligence or systemic failures leading to multiple avoidable deaths); (ii) previous investigations into the death; and (iii) the particular circumstances of the family – including the applicant’s mental health problems, learning disability and following the government amendments, another factor now to consider is the applicant’s emotional distress.
The second ground for exceptional case funding is that of a ‘wider public interest determination’ i.e. where the provision of advocacy to the applicant at inquest is likely to produce significant benefits for the wider public such as the identification of dangerous practices or systemic failings which risk the life, health or safety of others.
Applicants who meet the criteria for exceptional case funding must also satisfy the financial eligibility limit which normally involves an assessment not only of their own means but also the means of relevant family members.
The Legal Aid Agency can waive financial eligibility limits ‘if in all the circumstances it would not be reasonable to expect the applicant to bear the full costs of legal assistance at the inquest.’ Relevant factors here include the history of the case, the nature of the allegations raised against the state, the financial resources of the applicant, the estimated costs of providing representation and, in cases of deaths in custody, the particular circumstances of the family.
Where funding is granted to provide legal representation at inquest, contributions may be waived in whole or in part. |
KATHRYN RIDDELL
Partner in Sintons Healthcare Team
If you have any questions or require any advice on the issues discussed in this article please contact Kathryn Riddell on: (0191) 2267829 or kathryn.riddell@sintons.co.uk
