Published: 25th November 2020 PLP’s client ‘Claire’, a single parent and domestic abuse survivor, has overturned rules that prevented her from accessing legal aid. PLP lawyer Daniel Rourke has said that the High Court ruling of 24 November will improve access to justice for more survivors of domestic violence who are in poverty. The Legal Aid Agency (LAA) claimed that it had no option but to deny help to PLP’s client, ‘Claire’ in 2019 because she jointly owned a property, even though she was a victim of domestic abuse, could not access any of the ‘trapped capital’ in her home, and was in receipt of Universal Credit. On the day of the hearing, Claire had just £28 in the bank. Without legal aid, Claire faces the prospect of confronting her former partner in court in complex proceedings without the help of a lawyer. Today’s High Court ruling means that the LAA now has discretion over whether legal aid should be granted to survivors of domestic abuse where they have ‘trapped capital’ in homes which cannot be sold or borrowed against. The LAA will now have to reconsider whether to grant legal aid to Claire. The Court was told that, despite a special exception made to ensure survivors of domestic violence could access legal aid, many domestic violence survivors were being caught by the LAA’s strict interpretation of the rules. The Court heard from a family solicitor who specialises in supporting domestic violence survivors that her firm turns away 1-2 women a week because of the rule. PLP lawyer Daniel Rourke said: “No one should face an abusive former partner in the family court alone because they cannot afford legal representation. Today’s judgment goes some way to affirming that. This important clarification of what the legal aid rules mean is a positive step towards better access to justice. “The ruling has implications for other women in Claire’s position. The LAA will have to carefully consider whether it is appropriate to include the value of their homes when considering their applications for legal aid. “The judgment could also help other homeowners on low incomes who need help with a legal issue that is within the scope of legal aid and have good reasons why they cannot sell or raise money against their homes to pay for legal advice or representation privately.” “Claire had sought legal aid for family proceedings relating to child arrangements and the sale of her home, including if it is sold, where her children will live, and how the equity is shared between the parties. “The LAA’s decision meant that our client was expected to sell her house to pay for lawyers to represent her in proceedings which relate to the sale of her house. This was an absurd catch 22. “Acting as a litigant in person in those proceedings could have required her 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. Being on Universal Credit meant there was no way Claire could have paid for her own representation, and the court accepted that.” ‘Claire’ said: “This ruling could mean I won’t have to face my abuser in court without being represented. The last time I had to face him in court was horrendous. I had to speak for myself whilst he was there with a barrister. I was so nervous and scared that I was physically sick in the court room. My mum has already taken out so many loans to help me through this so hopefully she won’t have to do that anymore. We still have a long way to go with our legal challenges, but this ruling gives me some peace of mind. “If it means that other women won’t have to face their abusers in court, that will be amazing. It really is an injustice being told you have to sell your house to fight your abuser. To be honest, I didn’t think this ruling would come through in time for the hearings I’ve got coming up, but it was important to fight this on behalf of other women in the same situation. I wouldn’t want any woman to have to represent themselves because they can’t afford it.” Jenny Beck, a partner at Beck Fitzgerald Lawyers & Consultants, said: “This is a significant result and as a family practitioner I am delighted. Many vulnerable people, predominantly women, have been denied access to justice in the family courts as a consequence of the means test. Although further change is still needed, this judgment takes us further towards a fairer system for women like Claire.” Olive Craig, Senior Legal Officer at Rights of Women said: “This judgment is an incredibly important step towards improving access to justice for victims of domestic abuse. We frequently speak to women who cannot afford to pay for legal advice but are considered to be financially ineligible for legal aid. In practice, the financial assessment is 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. We commend the bravery of Claire for bringing this case that will change the lives of the women affected by it.” Claire was represented by PLP who instructed Chris Buttler and Emma Foubister of Matrix Chambers. Claire’s lawyers worked on a no win no fee basis, supported by an adverse costs indemnity from The Law Society. Law Society of England and Wales president David Greene said: “The Law Society is proud to have supported this challenge which raises issues of huge importance for access to justice for the most vulnerable. There was a clear injustice in denying victims of domestic abuse legal aid on the grounds of property they co-own with their abuser. Today’s judgment provides important clarification for victims of domestic abuse and we hope it will give more people confidence that they can secure the legal support they need to leave an abusive relationship and deal with the consequences. “This is one of a number of cases we are working on with the Public Law Project. The Law Society engages in strategic litigation when a strong case promotes justice, where a judgment would provide clarity and have broad consequences beyond the individual case.” Notes Our client is protected by an anonymity order; ‘Claire’ is not her real name. On our client’s behalf, PLP asked the court to make a declaration as to the construction of regulations 31 and 37 of the means regulations, and to quash the LAA’s decision of November 2019 not to grant her legal aid. PLP’s legal argument drew on the constitutional right of access to the court which is inherent in the Rule of Law (Unison) and on Articles 6 and 8 of the ECHR. Ends About the Public Law Project PLP was set up to ensure those marginalised through poverty, discrimination or disadvantage have access to public law remedies and can hold the state to account.Our vision is a world in which individual rights are respected and public bodies act fairly and lawfully. Our mission is to improve public decision making and facilitate access to justice.Our priorities are to:Promote and preserve the Rule of LawEnsure fair systemsImprove access to justice Contact information Web: https://publiclawproject.org.uk/ Tweet: @Publiclawprojct Email: l.robins-grace@publiclawproject.org.uk Call: 07808 159200