LAA reverses Exceptional Case Funding refusal after pre-action judicial review challenge

The circumstances behind the funding application 

Although divorced, the applicant remained closely involved in the deceased's life through the joint care of their vulnerable adult son and had been granted Interested Person status by the Coroner. She was the only family member able to engage meaningfully with the inquest process. 

The LAA had repeatedly refused funding, concluding that because the applicant was neither married to nor cohabiting with the deceased at the time of his death, she did not qualify for Legal Help under section 41(3) of Schedule 1 to the Legal Aid, Sentencing and Punishment of Offenders Act 2012 (LASPO), nor for Exceptional Case Funding under section 10(6). 

Challenging the LAA's decision through judicial review 

After exhausting the internal review process, we commenced pre-action judicial review proceedings, arguing that section 10(3) of LASPO imposed a duty to provide funding where refusing legal aid would breach, or risk breaching, the applicant's rights under the European Convention on Human Rights.  

We argued that this duty was not confined to the family categories identified in section 10(6), and that refusing funding in this inquest amounted to unjustified discrimination contrary to Article 14 because the applicant fulfilled the same practical role as a qualifying family member. 

The LAA initially disputed that the applicant could be regarded as an indirect victim because there was no current spousal or blood relationship with the deceased. In response, we relied on the authorities of Daniel and Milner, arguing that the substance of the relationship, rather than its legal status, was the relevant consideration.  

In Daniel v St George's Healthcare NHS Trust [2016], the Court considered the victim test to extend to next-of-kin and family members, including partners, and allowed an Article 2 claim to be brought by the former foster mother of the deceased. Similarly, in Milner v Barchester Healthcare Homes Ltd [2022], the victim test was held to be met where a claim was brought by a woman on behalf of a deceased elderly woman who had been a long-term family friend and for whom she had acted as Deputy. 

Our Public Law and Human Rights team also submitted that the applicant's evidence would be central to the inquest and that requiring her to participate without legal representation, while the remaining Interested Persons were public authorities with lawyers, created a clear inequality of arms. 

LAA reverses its decision and grants funding 

Following pre-action judicial review correspondence, the LAA reconsidered its position and agreed to grant and backdate both Exceptional Case Funding and Legal Help. 

While the Agency described the decision as fact-specific, the outcome demonstrates that practitioners should not automatically assume applicants outside LASPO's prescribed family categories are always ineligible for legal aid. It also illustrates the potential importance of section 10(3) where Convention rights are engaged and reinforces the value of pre-action judicial review as a means of prompting the LAA to reconsider funding decisions. 

Why this decision matters for families seeking answers 

Charlotte Andrews, Solicitor in our Public Law and Human Rights team, said: "This case demonstrates that an initial refusal of Exceptional Case Funding should not always be accepted as the final word. Where an applicant's exclusion is based on a rigid interpretation of family relationships, practitioners should carefully consider whether the refusal properly reflects the purpose of the legislation and the individual's Convention rights. 

"Those acting in inquests know that, where public bodies are legally represented, access to legal funding can be fundamental to ensuring effective participation. This outcome shows that the Legal Aid Agency is capable of departing from its own guidance where the facts warrant it, and that a carefully prepared challenge can make a real difference for families seeking answers." 

Charlotte Andrews acted for the applicant, supported by Clara Jenkins, also a Solicitor in our Public Law and Human Rights team, with Sophie Walker of One Pump Court instructed as counsel.