Domestic abuse survivor challenges legal aid rules

Over the last few years, legal aid has been decimated by huge funding cuts. These cuts were first initiated back in April 2013, under the Legal Aid, Sentencing and Punishment of Offenders Act 2012 (LASPO), as part of the government’s plan to save £350m a year.

The legislation significantly reduced the number of people eligible for legal aid and as a result has put a serious strain on those seeking support. This is especially true for survivors of domestic abuse. Over the last few years, deprived of legal aid, thousands of survivors have been forced to represent themselves in court.

One example of this lack of access is the experience of a woman called Claire (her name changed to protect her identity). Despite her financial difficulties, she was refused legal aid, and forced to represent herself, based on the fact that there was equity in the house she owns with her ex-partner.

She is now taking the Legal Aid Agency (LAA), a Ministry of Justice (MoJ) department responsible for providing legal aid and advice, to the High Court to contest her case.

Arguably, this is just another example in a long line revealing that the justice system is no longer fit for purpose. Many say that this shows the persistent inequality layered in the system, as justice is repeatedly denied to those most vulnerable.

Forced self-representation

Data revealed by the MoJ back in 2018, unveiled that a staggering 3,242 domestic violence survivors were denied legal aid. This forced them to represent themselves in at least one of their hearings at family court.

Commenting on this lack of support, Gloria de Piero, former Shadow Justice Minister said: “These figures show the shocking effect of the government’s cavalier changes to legal aid…” She added: “Thousands of victims of domestic violence are being forced to represent themselves in court against their abuser to seek protection for themselves and their children”.

Reflecting on the impact that LASPO cuts have had on women seeking justice, a 2016 Amnesty International report on legal aid cuts, explained that a two-tier system has emerged. According to the report, this two-tier system means the poorest in society cannot access justice. It outlines that after the legislation was introduced, the number of cases provided with legal aid dropped by 46%. Additionally, it has been reported that around one in five women who have suffered from domestic violence are denied legal aid, because it is deemed they have capital, even if it is inaccessible.

Figures show that almost one in three women will experience domestic abuse in their lifetime. However, under government sanctioned lockdown, it appears that the situation has only worsened.

Support services have reported a surge in domestic abuse phone calls, while the Metropolitan police have recorded over 4,000 arrests in relation to domestic violence. That’s around 100 arrests a day since 9 March. In London alone, charges and cautions for domestic abuse have risen by 24%.

On top of this, a project called Counting Dead Women, recently released shocking figures that revealed that between 23 March and 12 April, there have been at least 16 domestic abuse killings of women and children.

Consequently, The Legal Society, an association representing solicitors across the country, has called for unconditional legal aid to be provided to domestic abuse survivors.

Speaking about the importance of providing survivors with the support they require, President Simon Davis, said: “For those who do not qualify for legal aid and cannot afford a solicitor, navigating a telephone hearing unrepresented can prove even more complex than the usual court process”. Davis added: “Making non-means-tested legal aid available for domestic abuse cases would give victims the legal support and access to justice they so desperately need”.

In February 2019, the MoJ promised a review of LASPO. Its aim was to “assess the effectiveness with which the means-testing arrangements appropriately protect access to justice, particularly with respect to those who are vulnerable”. However, 15 months later, only part 1 of its Post-Implementation Review has been published, alongside a review of legal aid for inquests and a Legal Support Action Plan. With this, it promised a ‘comprehensive review’ of legal aid eligibility by summer 2020.

Dissatisfied with the MoJ’s review, Deborah Coles, Director of INQUEST,  said: “This is a dishonest response and a betrayal of those who invested in this review in the hope of securing meaningful change”.

Survivor denied legal aid

Emphasising the need for unconditional legal aid, Claire’s case draws attention to the fundamental inequality rooted within the system. Subjected to physical, psychological and emotional abuse at the hands of her partner, she sought out a non-molestation order and to protect both herself and her children, an occupation order.

Despite receiving Universal Credit, the LAA refused to provide her with legal aid. This decision was made on the basis that the woman technically owned half the equity in the house. However, without considering that selling the house would make Claire, and her children homeless, this is what the LAA expected her to do. In addition to this, selling the house would also require her ex-partner’s consent. The equity is therefore trapped capital.

As a result, unable to pay for legal aid, Claire was forced to represent herself in court. Yet, despite having to compete against her ex-partner’s barrister, she managed to get both orders.

Following this ordeal, the woman returned to court four weeks later, but this time, she was forced to face her ex-partner. This caused her significant emotional distress, which resulted in her vomiting out of sheer fear, which explicitly shows the effects of re-victimising survivors in court.

Now, she requires legal aid for proceedings relating to arrangements for her children, and for her ex-partner’s application to sell their home. She has been denied legal aid by the LAA once again.

The LAA challenged in High Court

Contesting the LAA’s denial of legal aid, supported by rights group Public Law Project (PLP), Claire is taking the agency to the High Court. Together, they are asking the High Court to make a declaration on the construction of regulations 31 and 37 of the means regulations.

Speaking about the preposterous situation Claire has been faced with, Katy Watts, a PLP Solicitor said: “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. Our client receives Universal Credit and cares for two small children. There is no way she could pay for legal representation on her own”.

She added: “The Legal Aid Agency’s decision means that our client is expected to sell her house in order to pay for lawyers to represent her in proceedings which relate to the sale of her house. This is an absurd catch-22 that denies legal aid to highly vulnerable individuals”.

Considering access to justice is the fundamental basis of the rule of law, cuts to legal aid for those who need it most, undermines this basic democratic tenet.

Reflecting on this injustice, Jenny Beck, a Director at the family firm Beck Fitzgerald, working pro-bono for Claire, said: “Even those living below subsistence level are denied proper access to justice. We are facing a real justice crisis here. There’s little sense in protective laws if normal people cannot access them”.

A spokesperson for the LAA, said: “We cannot comment on ongoing proceedings”.