Judges to rule on legal aid for domestic abuse victims in wake of LASPO

Dated:

The High Court will shortly decide in a judicial review whether a challenge to rules governing legal aid for people who have suffered domestic abuse is to be upheld.

Domestic violence continues due to lack of proofSupported by the Law Society (LS), the challenge has been mounted by the action group Rights of Women (RoW) and the Public Law Project.

Legal aid denied for "lack of proof"

RoW says many people are denied legal aid funding because they cannot provide sufficient evidence of abuse. According to the group this frequently results in legal action not being taken, with many people risking still more abuse which could lead to fatalities.

Rights of Women blames the government's 2013 changes to legal aid, which obliges people who have suffered domestic abuse to submit 'evidential' proof of their circumstances.

Huge areas of law to now lose legal aid

In April 2013 the Legal Aid, Sentencing and Punishment of Offenders Act – known as LASPO – denied funding to many areas of civil and private family law.

Domestic abuse was accepted, but only according to special circumstances or with harshly conditional requirements for eligibility.

Such requirements include provision of a GP's letter, proof of domicile at a refuge (or that a refuge place was required but none was forthcoming) and confirmation that an abusive partner is bailed or has been cautioned or convicted within the last 2 years.

Barriers to the disadvantaged

Campaigners argue that LASPO's conditions impose on poorer people often insurmountable barriers to accessing the justice to which they are entitled.

"The Act cut away civil legal aid from a significant swathe of private family law," commented Simpson Millar LLP's Emma Hopkins Jones, a specialist family law solicitor. "Even though domestic abuse is accepted, circumstances are highly specific and conditional."

"A major concern is that, with the loss of £300 million to the total civil legal aid budget between now and 2015, the availability of specialist legal advisors to those who need them, yet can least afford them, will decrease dramatically. The consequences of this could be grave."

"Women will die"

RoW director Emma Scott said the rule of English law is the poorer for the introduction of LASPO. "There are women who tell us that without legal aid they are staying in abusive relationships," she said. "It is not over-dramatic to say that women will die."

Ms Scott noted the findings of a survey taken after April 2013, where 46% took no action because legal aid application was denied, while some 33% met their own legal costs and a quarter self-represented in court.

"We have found that victims are borrowing money and going into debt," she said.

Ms Scott also criticised the justice department's post-LASPO "exceptional funding" programme that should have supported the most disadvantaged, yet whose complexity has been widely questioned. "It is simply not the safety net the government said it would be," Ms Scott said.

"Reconsider LASPO" – Law Society

At a recent Law Society (LS) 'Access to Justice' event, new LS president Andrew Caplen called on the government to relook LASPO and amend what he feels substantially restricts legal support.

Mr Caplen agreed that legal aid for domestic violence is much harder to obtain post-LASPO. "It's not that legal aid is not available, but it's harder to get it," he said, adding that domestic violence and easing legal aid restrictions will be prioritised by the LS in the coming year.

LASPO now legally challenged

When the government tried to establish a 'residence test' limiting legal aid access to those who have been UK residents for over 12 months, the move was dismissed in the High Court as "discriminatory and unlawful".

Campaigners have argued that the test could have been especially damaging to women who might, as an example, have fled forced marriages and were uncertain of their immigration status.

The government's position is that, in instances of domestic abuse, "thousands" have been successful in their applications for legal aid, which was set up in England and Wales in 1949 and is designed to augment legal costs for disadvantaged people.

According to the justice department, ministers are "closely monitoring the impact of LASPO's legal aid changes", and that action has already been taken on many of the "concerns".

Legal aid categories reversed by LASPO include:

  • Family cases where domestic violence, forced marriage or child abduction is unproved
  • Immigration cases where detention or asylum are not involved
  • Debt and housing issues, unless there is an imminent risk to the home
  • Welfare benefits other than appeals in the High Court
  • Most cases of clinical negligence
  • Employment cases with no human trafficking or contravention of the 2010 Equality Act




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