Changes to Exceptional Case Funding for Inquests

What is the current criteria?

At present, families can apply for Exceptional Case Funding in order to secure legal representation at inquests. In order to secure such funding, families must satisfy two tests, namely the ‘merits test’ and the ‘means test’.

The Legal Aid Agency considers that the merits test is satisfied where one of the following applies:

• The inquest engages Article 2 of the ECHR; or
• The inquest meets the significant wider public interest test as set out by the Lord Chancellor’s Guidance.

Satisfying the means test

In addition to satisfying the merits test, families must also satisfy the means test. To do so, they must declare all their assets and financial information, including any property or other valuables which could be sold to cover the costs of their legal representation. If the family’s assets fall above the eligibility threshold, then they will not be granted Exceptional Case Funding. In other situations, the Legal Aid Agency may grant Exceptional Case Funding but they may also require the family to provide a contribution to the costs, depending on their financial means.

In these cases, the only options available to the family would be to fund the legal costs of the inquest themselves (which could amount to tens of thousands of pounds) or to attend the inquest without legal representation. In reality, not many families are able to fund such significant costs themselves and therefore, they must attend inquests without legal representation. This has given rise to considerable injustice over the years, especially as state bodies are automatically entitled to funding at public expense.

Changes to the process, removing the means test

However, from 12 January 2022, the means test will be removed and families will not have to declare their financial information as part of the funding application. Therefore, if the merits test is satisfied, families will be granted Exceptional Case Funding for legal representation at an inquest. This change is a very welcoming one for bereaved families as it removes the burden of a financial means assessment at a time which is already highly stressful and emotional.

Require further guidance?

If you would like more specific advice regarding your application for Exceptional Case Funding, our medical negligence team can provide expert advice on what your options might be. Call us on 01633 244233 or email hello@hevans.com.