Legal aid changes in domestic violence cases legally flawed, rules appeal court

Government changes to the rules for obtaining legal aid in domestic violence cases have been declared legally flawed by the Court of Appeal.

Women’s rights campaigners argued large numbers of victims are unlawfully being excluded from obtaining funding because of the changes.

And those who have endured rape and beating are unfairly being forced to “face their abuser in court” without legal representation.

Three appeal judges have now ruled the changes “invalid” insofar as they require verifications of domestic violence to be given within a 24-month period before any application for legal aid.

The judges also ruled the changes were flawed because they exclude from legal aid victims of domestic violence who have suffered from financial abuse.

The ruling is a victory for campaign group Rights of Women (ROW), which appealed against a High Court judgment that upheld the changes as lawful.

At the heart of the case are rules introduced as part of the Legal Aid, Sentencing and Punishment of Offenders Act 2012 (Laspo).

The High Court had ruled former lord chancellor and justice secretary Chris Grayling acted within his powers when he introduced the changes by making regulation 33 of the Civil Legal Aid (Procedure) Regulations 2012.

But the appeal court – Lord Justice Longmore, sitting with Lord Justice Kitchin and Lady Justice Macur – ruled regulation 33 “frustrated the purpose of the 2012 Act of granting legal aid to victims of domestic violence”.

The rule changes, made in April 2013, set out mandatory evidence requirements for a victim who is seeking legal aid for a private family law case.

ROW lawyers told the court large numbers of victims are being turned away ”at the first hurdle” because they have no permissible evidence, and are left with the choice of paying a solicitor privately – often resulting in them going into debt – representing themselves, or doing nothing and continuing to be at risk.

The scope of their entitlement was seriously affected by the imposition of a limitation period of 24 months on the evidence that will be accepted.

A Ministry of Justice spokesman said the appeal court judgment would be “carefully considered”.

He said: “We are pleased the court confirmed the lord chancellor did have the power to set domestic violence evidence requirements.

“We will now carefully consider the two findings made about the period of time for which evidence applies and concerns about victims of financial abuse.

“We are determined to ensure victims of domestic violence can get legal aid whenever they need it.

“We have made it easier for victims of domestic violence to obtain legal aid, by ensuring a broader range of evidence qualifies. This has contributed to a 19% rise in the number of grants awarded.”

During the one-day appeal hearing in January, lawyers for ROW told the judges new data shows that 40% of victims still do not have the required forms of evidence to access legal aid.

They said the most common form of evidence available, introduced in April 2014, is a referral by a health professional to a victim support organisation.

Other forms include evidence from a medical professional or social services and evidence of a protective injunction.

ROW’s director, Emma Scott, said: “The Government acknowledges that domestic violence is ‘often hidden away behind closed doors, with the victims suffering in silence’.

“More than three years on from the devastating cuts to legal aid, and despite amendments to the rules, we know that those victims behind those doors do not have the required pieces of paper to prove they have experienced domestic violence.

“Our research has consistently shown that nearly half of women affected by domestic violence do not have the required forms of evidence to apply for family law legal aid and that more than half of those women tell us they take no legal action as a result.

“This leaves them at risk of further violence, and even death.”

Law Society president Jonathan Smithers expressed his concern that some forms of evidence are subject to a 24-month time limit, even though victims might be under a life-long threat – the limit the appeal judges have now ruled invalid.

Mr Smithers said: “Legal aid is a lifeline for victims of abuse. This new data shows that access to safety and justice is still being denied to the very people the Government expressly sought to protect with its amendments to the regulations.

“The harsh tests requiring people to bring evidence to satisfy the broader statutory meaning of domestic violence are not what Parliament intended.”

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