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In November 2020, the High Court delivered an important judgment in the case of
R (GR) v Director of Legal Aid Casework [2020] EWHC 3140 (Admin), which established that legal aid should be available to those with trapped capital: people who, on paper, look like they are not eligible for legal aid due to owning property, but who are unable to access that capital in practice. This could be where a co-owner will not consent to sale or because the individual has fled the property due to domestic violence.
1See Public Law Project’s Practice note: ‘trapped’ capital (26 July 2021) for further examples.Nearly a year on, Public Law Project (PLP) has seen evidence that it may still be difficult to obtain legal aid in such cases. Our research is beginning to build a picture of whether those eligible for legal aid in cases of trapped capital are able to access funding in practice, but we will conduct interviews to gather further information about experiences of this. If you would like to share your views, please contact Dr Emma Marshall at:
e.marshall@publiclawproject.org.uk.
Scope of the research
This article summarises initial findings from a survey run by PLP in August 2021. We received 30 responses, most of which were from legal aid practitioners, but we also heard from a few advice and support charities. We are keen to gather more feedback from all organisations that see cases of trapped capital.
GR was a family case that related to a survivor of domestic violence, and the majority of responses we received related to the areas of family law and domestic violence, although it is important to note that circumstances of trapped capital could arise in any area of civil law and the judgment applies across all areas. Some participants stated that the issue had not come up, which is perhaps to be expected given the timeframe since the judgment and that the circumstances of trapped capital are relatively specific. There were, however, some serious concerns raised by the research.
Delegated authority and risk
A key finding of our initial research is that providers are concerned that using delegated authority
2Delegated authority allows the lord chancellor and/or director of legal aid casework to delegate their functions under the civil legal aid legislation to others, meaning that, in some circumstances, legal aid providers are authorised to grant legal aid. See Work out who qualifies for civil legal aid (Legal Aid Agency, 1 June 2014; last updated 4 January 2021). to grant legal aid in cases of trapped capital puts them at risk of breaching their contractual requirements with the Legal Aid Agency (LAA). Only four of the legal aid practitioners responding to the survey had used delegated authority to grant legal aid to their clients with trapped capital. The responses suggested some hesitancy among those with legal aid contracts, due to the risk of self-granting legal aid that the LAA could later withdraw. One participant said:
In order to correctly exercise delegated powers to self-grant legal aid funding, a provider must be sure that both the merits and financial regulations are fully met. Any ‘wrongful’ use of delegated functions will be brought up as the key performance indicator [KPI] issue. Given that the trapped capital issue requires discretion, and combined with the fact that it could be a KPI fail and [if] refused, we could end up out of pocket. We do not believe that it is appropriate to exercise delegated functions when the issue of trapped capital is in question.
Another respondent emphasised that they could not risk granting legal aid where it could have a longer-term impact on their business:
Legal aid margins are so tight that we cannot afford to take on costs that will not be met or we would quickly be out of business. We just cannot go ‘at risk’.
The Legal Aid Agency and discretionary decision-making
A second key finding was that some legal aid practitioners regard the LAA’s discretionary power to grant or refuse the application as off-putting or problematic, as the application process is time-consuming, and it can take several attempts to secure funding for their clients. The research raised explicit concerns about the discretionary approach that the LAA applies in deciding these types of case. One participant said:
My view is the issue of trapped capital should not be discretionary, but a given. The discretionary element gives rise [to] future and further delay [at] times where urgent work may need to be undertaken.
The responses highlight that the outcomes for individuals can also vary, and some people may not be able to access legal aid even where they are potentially eligible, due to trapped capital. One practitioner highlighted that some clients are very cautious and ‘wary’ about the process, based on their previous experiences of trying to obtain legal aid. They had seen several occasions where clients had decided to proceed as litigants in person. These findings are worrying given the potential implications for access to justice.