Exceptional Case Funding: legal aid for housing cases

Legal aid for civil cases in England was significantly cut by the Legal Aid, Sentencing and Punishment of Offenders Act 2012 (LASPO). Housing disrepair claims are not within the scope of mainstream civil legal aid. However, there is a scheme called Exceptional Case Funding (ECF) that can, in limited circumstances, fund cases that would otherwise fall outside the scope of legal aid.

What is Exceptional Case Funding?

Exceptional Case Funding is a legal aid scheme administered by the Legal Aid Agency (LAA). It provides funding for legal representation in civil cases that fall outside the normal scope of legal aid, where failure to provide representation would mean:

• A breach of the person's rights under the Human Rights Act 1998 (specifically Article 6, the right to a fair trial, or Article 8, the right to respect for private and family life), or
• A real risk of a breach of European Convention on Human Rights (ECHR) rights

ECF is designed as a safety net for cases where the lack of legal representation would itself be a human rights violation.

When does ECF apply in housing cases?

ECF is not automatically available for housing disrepair claims. To succeed, you need to show that:

1. Without legal representation, there would be a real risk that you could not participate effectively in the proceedings
2. This would breach your Article 6 right to a fair trial, or
3. The conditions in your home engage your Article 8 right to respect for your private and family life, and the proceedings affect those rights

Article 8 has been used in some housing cases where the home environment is central to a person's wellbeing and dignity. A claim involving serious disrepair affecting a person with a disability, a child with a serious health condition, or an elderly person may engage Article 8 more strongly than a straightforward disrepair claim for a healthy adult.

Who can apply for ECF?

To be eligible for ECF, you must also pass a financial means test. If you have income above a certain level, you may not qualify even if your case satisfies the ECF criteria.

You apply through a legal aid solicitor. Not all solicitors are approved for legal aid work. You need to find a solicitor with a legal aid contract (a Housing Legal Aid provider) who can submit an ECF application to the LAA on your behalf.

How likely is ECF to be granted?

ECF is granted sparingly. The LAA has historically received relatively few applications and has granted a modest proportion of them. Appeals against refusals are possible but add time and cost.

For most housing disrepair cases, the no-win-no-fee route is a more practical way of accessing legal representation. ECF is relevant mainly where the case has a strong public law or human rights element that goes beyond a straightforward disrepair compensation claim.

What is covered by scope: housing cases that do get legal aid

Some housing cases remain within scope (covered by standard legal aid), subject to means and merits tests:

• Loss of home (possession proceedings where you are the defendant)
• Homelessness appeals to the county court
• Injunctions to prevent illegal eviction or harassment
• Cases involving domestic abuse and housing
• Disrepair that is also a possession defence (some circumstances)

If your housing case involves any of these, you may be eligible for legal aid without needing ECF.

Finding a legal aid housing solicitor

Legal aid solicitors who handle housing cases are searchable on the gov.uk legal aid finder. Specify "housing" as the type of case and your postcode. Not every area has a legal aid housing solicitor, there are significant geographic gaps, particularly outside major cities.

Law Centres and some Citizens Advice bureaux also offer legally aided housing advice.

The no-win-no-fee route for housing disrepair

For housing disrepair claims that do not qualify for legal aid, the most common route is a conditional fee agreement, no-win-no-fee. This is how Support for Tenants operates. You do not pay anything upfront, and legal fees are recovered from the landlord if you win.

When should I contact Support for Tenants?

If you are considering your options for a housing disrepair claim and wondering about legal aid or funding, we can explain how our no-win-no-fee arrangement works and whether your situation is one we can help with.

Call us on 0800 030 4669. No upfront cost. You only pay if you win, and the fee comes out of the compensation, not your pocket. If you don't win, you pay nothing.

Sources

• Legal Aid, Sentencing and Punishment of Offenders Act 2012 (legislation.gov.uk)
• Human Rights Act 1998 (legislation.gov.uk)