Question to the Ministry of Justice:

To ask the Secretary of State for Justice, what information his Department holds on the withdrawal of legal aid certificates in litigation cases relating to harm caused by sodium valproate; and whether people involved in such cases were aware of the availability of Exceptional Case Funding.

Legal aid was granted in respect of a multi-party action product liability dispute under the Consumer Protection Act 1987 against Sanofi, the manufacturers of Epilim, a sodium valproate containing medication. The availability of legal aid in connection with this matter was subject to a means and merits test.

Legal aid funding was subsequently withdrawn on the basis that the case no longer met the merits test because the prospects of success in the case were assessed as being poor. This determination was subject to an appeal before the Special Cases Review Panel, a panel consisting of independent lawyers, in October 2010. When determining whether legal aid should be withdrawn all relevant factors were taken into account. The assessment of long-term care needs following a withdrawal of legal aid is not a process that is part of the legal aid scheme and there is no statutory provision which requires or envisions this happening.

At the material time the Legal Services Commission (LSC), an executive non-departmental public body of the Ministry of Justice, was responsible for the operational administration of the legal aid scheme. Decisions about funding in individual cases were made independently in accordance with the statutory framework in place. At the relevant time this would have included the Access to Justice Act 1999 and the Funding Code Criteria and Guidance. Exceptional Case Funding (ECF) would not have been available for this matter as the case was in scope of legal aid under the Access to Justice Act 1999.

In 2013, the LSC was replaced by the Legal Aid Agency (LAA), an Executive Agency of the Ministry of Justice, created by the Legal Aid Sentencing and Punishment of Offenders Act 2012 (LASPO). Under LASPO, the scope of civil legal services funded under legal aid was significantly reduced. ECF as provided for under s.10 LASPO allows legal aid to be granted in respect of cases which fall outside the scope of civil legal aid services where it can be shown that, without legal aid, there would be a breach or a risk of a breach of the individual’s human rights or assimilated enforceable EU rights. However, as with in-scope legal aid eligibility is subject to a financial eligibility test and a legal merits test, including where appropriate, the prospect of success test.

The nature and availability of ECF is published on GOV.UK and the LAA publishes detailed guidance on how to apply for ECF Legal aid: apply for exceptional case funding - GOV.UK. All solicitors have an obligation in accordance with professional body rules to advise clients about funding options available including legal aid whether provided as in-scope funding or ECF.

The independence of decision making in individual cases under LASPO was preserved by the creation of the statutory role of the Director of Legal Aid Casework. The Lord Chancellor may not issue directions or guidance in relation to an individual case. It is this separation that enables the LAA to make decisions without influence from the Ministry of Justice or from Ministers. This is an important part of the legal aid system and ensuring access to justice.

All applications for legal aid, whether in-scope or ECF, are considered on a case-by-case basis against the statutory framework and any applicable general guidance issued by the Lord Chancellor. Legal aid will be granted in all cases where the appropriate eligibility criteria are met.