Legal aid and inquests - intrusiveness at a vulnerable time

Posted on Fri, 05/11/2021

We grieve after any loss, but most powerfully after the death of a loved one. According to the Royal College of Psychiatrists, it takes most people one to two years to recover from a major bereavement.

With that in mind, imagine when the circumstances surrounding a death are such that an inquest is necessary to determine when, where and how a person died. This process can feel insensitive to those grieving, not least as they will have to fund a significant legal bill following the inquest.

Sadly, many bereaved families have to go through this, with 32,000 inquests opened in 2020 alone. This has led to calls from leading public figures such as James Jones (the former bishop who chaired the Hillsborough Independent Panel), Lord Bach and Dame Elish Angiolini, for changes in the way in which legal aid is granted following a state-related death. This can involve deaths of patients in an NHS hospital, in prison or police custody, individuals detained under the Mental Health Act 1983 and those which involve other public bodies.

Out of those 32,000 inquests opened last year, only 192 cases were granted 'legal aid help' and 136 cases had civil representation funded by legal aid. 

At present, legal aid for inquests is very limited and legal representation at most inquests is excluded. When a coroner is holding a standard inquest (i.e., when a coroner is not determining whether there were failings by agents of the state to prevent the death), there is no public funding available at all for legal representation.

For a non-standard inquest, funding for 'legal help' is available which covers families for the initial advice in the run up to an inquest hearing. It can provide funding for lawyers to assist families with matters such as preparing submissions and written questions to the coroner.

However, funding is subject to passing a 'merits test and means test'. This involves an assessment by the Director of Legal Aid Casework as to whether the individual case is justified and whether the applicant's financial situation is such that funding is required. There are exceptions whereby these tests can be wavered, but such cases are very few and far between.

The nature of the tests is an area of the process that can lack sensitivity, especially at a time when families need support the most. 

A proposed solution to the issue, as championed by charities such as INQUEST, is an attempt to remove the barriers to financial support by introducing automatic non-means tested legal aid funding following a state-related death.

This idea was considered by the government during its 2018 call for evidence on legal aid for inquests. The outcome of its review, published in February 2019, rejected the proposal, estimating it would result in additional costs of £30-70million. Instead, the government pledged to raise awareness, clarify eligibility, simplify the application process and work closely with other government departments to explore further options for the funding of legal support at inquests.

The government resisted further requests to introduce non-means tested legal aid for all cases following a Justice Select Committee report on the coroner service in May 2021. However, it agreed to take forward legislation to remove the means test from the exceptional case funding scheme and provide non-means tested legal help.

The difficulties many bereaved families have in securing funding represents a clear barrier to their accessing justice at a time when they are at their most vulnerable. An inquest can be a complex process and it is vital that consumers have access to a legal representative with the necessary expertise. 

It is hoped that further lobbying with continue to improve access to justice for consumers in the inquest process. The government's most recent acknowledgement and proposed legislation introduction is certainly a step in the right direction.

Author: Andy Tindall, ACSO secondee and senior litigation executive at Fletchers Solicitors.