Domestic violence victim challenges Legal Aid Agency over refusal to grant legal aid
On 9 June 2020, Public Law Project (PLP) represented a victim of domestic violence in her challenge to the Legal Aid Agency’s (LAA’s) decision not to grant legal aid for her family proceedings.
Claire1Name changed to protect the client.
was denied legal aid because the LAA’s interpretation of the Civil Legal Aid (Financial Resources and Payment for Services) Regulations 2013 SI No 480 allows it to take into account ‘trapped capital’ in the home she jointly owns with her ex-partner when assessing her eligibility, even though she is not in a position to access that equity.
Acting on Claire’s behalf, PLP asked the court to make a declaration as to the construction of regs 31 and 37 of the 2013 Regs and to quash the LAA’s decision. PLP’s legal argument draws on the constitutional right of access to the court, which is inherent in the rule of law,2R (Unison) v Lord Chancellor  UKSC 51 – see September 2017 Legal Action 39.
and on articles 6 and 8 of the European Convention on Human Rights
PLP solicitor Katy Watts said: ‘My client is seeking legal aid for family proceedings relating to child arrangements and the sale of her home, including when it is sold, where her children will live, and how the equity is shared between the parties. Acting as a litigant in person in those proceedings could involve having to cross-examine her ex-partner – of whom she is completely terrified – whilst at the same time arguing complex points of law. It is unrealistic to think that anyone in that situation could represent themselves effectively.’
Watts added that Claire receives universal credit and cares for two small children. ‘There is no way she could pay for legal representation on her own,’ she said. ‘There is a very serious access to justice problem here.’
Claire said: ‘The LAA is saying that I have to sell my house in order to fight to be in my house, or to get my fair share of it. It’s obvious that I can’t do that. The alternative is to represent myself. The idea of seeing my abuser again in court is utterly terrifying.’
She had previously had to go to court on her own to keep contact and non-molestation orders in place. ‘He was there with his barrister,’ she recalled. ‘His barrister was pushing for a “zonal order” which would have allowed my ex-partner back into the house, but I had no idea what it meant at first. They were using legal jargon I didn’t understand. That was the first time I had seen him or heard his voice in four weeks. He was really angry. It was awful. I was petrified. I had nobody to help me. When I heard his voice I was physically sick in the courtroom. There was such an inequality of power. He had his barrister and I didn’t have anybody. I was fighting on my own.’
‘After that, I had to go to court another three times about the child arrangement orders,’ she said. ‘By that point I had pro bono legal advice from a solicitor, but I still had to pay for the barrister to represent me at the hearings. My solicitor managed to get the barrister to agree to represent me at legal aid rates. But even at [those] rates my Mum ended up taking out a loan and selling some of her furniture and her rings to pay for me to have a lawyer to represent me in court. She can’t afford to do that again.’
As Olive Craig, senior legal officer at Rights of Women, explained, Claire’s case is not unusual: ‘We frequently speak to women who cannot afford to pay for representation but who are considered to be financially ineligible for legal aid because the test is so strict.’ The financial assessment is, she said, ‘unnecessarily complicated and completely out of touch with reality. We hear from victims of abuse who are having to resort to food banks to feed their children but are assessed as financially ineligible for legal aid. You should not have to sell your home and make yourself and your children homeless to be able to access justice.’
Jenny Beck, a director at Beck Fitzgerald, has acted for Claire pro bono. She agrees that the problems Claire has encountered are common. ‘Legal aid is denied to about one in five of the women I see because of the way the scheme works,’ she said. ‘Even those living below subsistence level are denied proper access to justice. There’s little sense in protective laws if normal people cannot access them. Those falling into this trap are very often women victims of abuse and in spite of a government commitment to revisit these unfair rules, the position remains.’
The Law Society has indemnified Claire against the risk of adverse costs, without which PLP would not have been able to bring the case.