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All change for legal aid

by Karen Dovaston
9 March 2017

Karen Dovaston of Jefferies Essex LLP, Southend-on-Sea, Essex discusses the recent announcement that the five-year limit on evidence of domestic violence will be removed. 

What is in the news?

Clients seeking legal aid in private law children matters, divorce and finance have to meet three requirements: 

  • getting through the ‘domestic abuse’ gateway
  • being within scope on the merits
  • being financially eligible. 

We have seen press articles advising that the MoJ will announce plans to remove time limits within which domestic abuse has to have taken place for the ‘gateway’ test and also change the types of documentary evidence that have to currently be produced as evidence that domestic abuse has taken place.

There are no announcements as yet on the MoJ website for the Legal Aid Agency. The incentive for change was the prime minister’s speech; Teresa May promised an increase in prosecutions for domestic abuse offences and an improvement in the way in which the police deal with victims of domestic abuse. The Office of the Lord Chancellor, Liz Truss, announced the relaxation in requirements not long after this speech. 

The background

We all know that it was the Legal Aid, Sentencing & Punishment of Offenders Act 2012 (LASPO)  promoted by Chris Grayling, the then lord chancellor, that changed the eligibility rules for legal aid, cutting back eligibility severely. At the time, it was only where an applicant could produce documentation from a quite narrow and precise selection to ‘prove’ they were a victim of domestic abuse within the last two years that they would be able to move on to be assessed on means and merits.

In 2015, the Commons Justice Select Committee produced a highly critical report of the scheme requirements. The Rights of Women Group, who had unsuccessfully legally challenged the change in rules, commissioned a survey, the results of which said ‘39 per cent of women who were victims of domestic violence had none of the forms of evidence required to qualify for legal aid’. This echoed the experience of legal aid solicitors who were dealing with distressed and troubled clients, unable to get the ‘right’ paperwork to access the help they needed.

In 2016, the rules for ‘time limits’ within which domestic abuse has to be proven were relaxed from two years to five years. Again, this does not address all of the issues of long term/historical abusers, lack of documentation, and disappointingly, GPs who want to charge domestic abuse victims a report fee for the production of the letter they need to access the legal aid system. In February 2017, it was reported  that a letter signed by 16 police and crime commissioners called on the health secretary, Jeremy Hunt, to stop the ‘callous, insensitive and unjust’ practice of charging victims of domestic violence up to £175 for a medical letter to prove they were abused.  

The statistics

The statistics from the Office for National Statistics (ONS) are truly thought provoking. In March 2015, 1.2 million women and 651,000 men were victims of domestic abuse. From April 2012 to March 2015, there were 432 domestic homicides; 315 (73 per cent) were women and 117 men. Of the women murdered, 97 per cent were murdered by a man. Over 70 per cent of households with a domestic abuse murder had children in the household.

What can we expect?

No one quite knows. It is anticipated that statements from organisations working with domestic abuse victims will be accepted as evidence of risk as will letters from solicitors and information from housing officers. What is not clear is what those letters have to say and what the writers of the letters will need to see (documentation or otherwise) to be able to give the certification for the purposes of accessing the legal aid scheme.

A removal of the five-year limit will also help but the main issue is the need for documentary evidence and the narrow types of acceptable evidence; for example, there have been instances of a letter signed by someone other than the chair of a multi-agency risk assessment conference (MARAC) being refused. The rules were later relaxed in that respect. At present, the guidance currently issued for the types of acceptable evidence is 24 pages long - it needs to be simplified. Solicitors want to comply with the requirements of the Legal Aid Agency so they need to know what they have to do in clear terms.

In all of this attention on the domestic abuse criteria, it seems that the financial eligibility element has been largely forgotten. The financial ‘test’ has not changed for nearly 10 years. The allowable income after allowable deductions is still £733.

What do we do now? 

Be aware of the changes coming.

Tell your clients about the changes.

Keep an eye on the news.  

About the author - Karen Dovaston

Karen Dovaston is a member of the Family Section Advisory Group. She is deputy head of family law department and family law arbitrator at Jeffries Solicitors.

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