Legal aid update
Legal aid practice update: ‘Domestic violence evidence requirements unlawful’ says CA
Simon Pugh analyses the decision in R (Rights of Women) v Lord Chancellor and Secretary of State for Justice [2016] EWCA Civ 91.
About the author
Simon Pugh is a non-practising solicitor and formerly worked in high street practice and for Shelter, the housing charity. He is co-editor , with Vicky Ling, of LAG Legal Aid Handbook 2015/16.
The Court of Appeal found that regulation 33 of the Civil Legal Aid (Procedure) Regulations 2012 SI No 3098 (as amended) was unlawful because it frustrates the statutory purpose of the Legal Aid, Sentencing and Punishment of Offenders (LASPO) Act 2012. Regulation 33 is the regulation which sets out the strict evidential criteria that applicants for legal aid have to meet to qualify for legal aid because of domestic violence. This is important because most private family law is now out of scope, unless it can be shown that the applicant is a victim of domestic violence. Regulation 33 (often referred to as the domestic violence gateway) sets out the evidence that must be produced by an applicant to demonstrate that she (as is most often the case) is such a victim. The regulation is strictly drawn: only evidence of the type set out is permitted, and then only (with the exception of criminal records and proceedings) when it dates from no more than 24 months before the application.
The appeal was based on two main grounds. Dealing swiftly with the first, Longmore LJ (with whom LJ’s Kitchin and Macur DBE agreed) held that the regulations were not ultra vires: the Lord Chancellor had the power, under sections 11 and 12 of the LASPO Act, to make regulations limiting access to legal aid, including by the imposition of evidential and chronological requirements. But, on the second ground, he allowed the appeal. Considering what had been said in the residence test cases (R (Public Law Project) v Lord Chancellor and Office of the Children’s Commissioner (intervener) [2015] EWCA Civ 1193 and [2014] EWHC 2365 (Admin)) and the judicial review funding case (R (( 1) Ben Hoare Bell Solicitors (2) Deighton Pierce Glynn Solicitors (3) Mackintosh Law (4) Public Law Solicitors (5) Shelter v Lord Chancellor [2015] EWHC 523 (Admin)) , Longmore LJ concluded that the statutory purpose was as follows:
… to withdraw civil legal services from certain categories of case in order to save money but also to make such services available perhaps not to the entire membership of most deserving categories of case (such as victims of domestic violence) but at any rate to the great majority of persons in the most deserving categories. That will be catered for partly by the requirements of financial need and merit as set out in section 11 but can also be catered for by requirements which the Lord Chancellor is entitled to impose under the section 12 regulation-making power. The question will then be whether any such additional requirements (such as the 24 month time limit) are rationally connected with that purpose, see Ben Hoare Bell para 40 per Beatson LJ and Ouseley J (para 41).
In exercising discretion conferred by a statutory power, it is the duty of a minister to act in a way which promotes the statutory purpose. Those powers cannot be used to frustrate that purpose. Even where the House of Commons had rejected amendments to prevent the power in the statute being used in the way it would be used in the regulations, this does not prevent the court deciding for itself what the purpose of the statute was and whether the regulations made promoted or frustrated it.
Longmore LJ then set out a series of examples of cases where an applicant would not be able to obtain legal aid because of the 24-month rule:
i) the perpetrator may have been in prison; once he (it is almost always he) is released, he may initiate proceedings for child contact or divorce and financial settlement; regulation 33(2) (a) can only be relied on if the conviction preceding the prison sentence is a relevant conviction for a domestic violence offence and if it is unspent; if the sentence is a fine or a community order, the conviction will be spent after only 12 months from the date of conviction or from the last day the order is to have effect ;
ii) there may have been a non-molestation order (or other form of injunction) which has kept the parties apart for [two] years but has expired before legal proceedings are begun;
iii) a similar period of separation may have occurred for other reasons such as the receipt of a police caution or other police involvement; criminal proceedings may have been instituted which do not result in a conviction; such non-convictions occur for many reasons other than that the alleged perpetrator is innocent;
iv) there is no time limit for the initiation of proceedings for child contact; a refusal of child contact does not prevent a re-initiation of proceedings which can therefore be served again on the victim of domestic abuse after the expiry of the two-year period. Additionally, the court can direct, pursuant to section 91(14) of the Children Act 1989, that no such proceedings shall be begun without permission of the court for a period until the expiry of the two-year period in which domestic abuse could be verified in accordance with the regulations; if the court also directs that any application for permission is not to be served on the respondent, a victim of domestic abuse may receive no notice of prospective proceedings within the relevant period in which she may otherwise take steps to obtain verification ;
v) The main priority of any victim of domestic violence will be to make immediate arrangements for her personal safety and that of her children; this may take a considerable time particularly if the abuse was prolonged or the marriage was originally a forced one; any proceedings sought to be brought by the victim for divorce or financial relief may well be more than 24 months after any practical ability to obtain verifiation has passed;
vi) although the definition of domestic violence extends beyond physical abuse to psychological or emotional abuse, the verifications required by regulation 33 are much more easily satisfied where there has been physical abuse than where there has been psychological or emotional abuse. This means that even though signs of psychological or emotional abuse may persist longer than sign of physical abuse, there is considerable difficulty for the victim in obtaining the necessary verification after any lapse of time; and
vii) victims of financial abuse will not be able to obtain any of the verifications required by regulation 33 at all. (The only answer Mr Sheldon [who appeared for the Lord Chancellor and Secretary of State for Justice] could give to this last point was the inadequate one that victims of financial abuse could always be expected to show evidence of psychological abuse) (para 43).
Longmore LJ described this as a ‘formidable catalogue’ , which shows that the 24-month requirement has ‘no rational connection’ with the statutory purpose of ensuring that legal aid is available to the great majority of sufferers of domestic violence (para 44). Exceptional funding was not enough of a safety net to make the regulations lawful.
Insofar, therefore, as regulation 33 imposes a 24-month time limit and does not cater for victims of financial abuse, it was declared invalid.
This is a relatively short but powerful judgment. It is interesting that it returns, once again, to a theme that has been identified in much of the LASPO Act litigation: that of the statutory purpose of the Act, and the extent to which rules and procedures made under its powers are compatible with this purpose.
There has been a developing and shifting emphasis in judicial expression of that purpose; however, having considered what had been said in a range of earlier cases, Longmore LJ took as his starting point the description of Moses LJ in the High Court residence test case:
Analysis of Part 1 of Schedule 1 shows that the statute seeks to conÿne civil legal services which the Lord Chancellor must secure to cases which are judged to be of the greatest need. Those cases are identified by reference not only to the circumstances which an individual might face but also by reference to personal characteristics or attributes, for example, children or those suffering from mental ill health. But whether defined by reference to their status or by reference to their circumstances, Part 1 of Schedule 1 seeks to identify those individuals and their circumstances having the greatest need for civil legal services. Leaving aside questions of financial resources and merits, no example can be found within the primary legislation of a distinction drawn between those entitled to civil legal services and those who are not on grounds other than assessment of need. The purpose lying behind the identification of services in Part 1 of Schedule 1 is to identify need. Thus, parliament has chosen to exercise a judgment according to the criteria of need and not on any other basis (Public Law Project, para 37 quoted at Rights of Women, para 37).
When the Public Law Project case (above) was heard in the Court of Appeal, Laws LJ placed more emphasis on cost saving as part of the statutory purpose, which enabled him to find that the residence test – as a cost-saving measure – was not unlawful (a position the editors of LAG Legal Aid Handbook noted did not seem to reflect the arguments made for the test when it was first proposed).
Longmore LJ has, in the Rights of Women case, resolved the tension between those two approaches. He noted that Laws LJ cited Moses LJ’s expression of the purpose without disapproval, and that the former went on to say:
The reality is that need and cost are not strange bedfellows. It must be obvious that in circumstances of financial stringency choices as to the disposition of public funds in a particular area will focus on need for the service in question. Thus it is not merely unsurprising that Part 1 of Schedule1 lists categories where the need for civil legal aid is pressing; it is, in effect , inevitable (quoted at Rights of Women para 38).
This enabled Longmore LJ to say that:
Drawing the threads together it seems to me that the purpose of the statute (or, more crucially, the relevant parts of the statute) read as a whole is partly to withdraw civil legal services from certain categories of case in order to save money but also to make such services available perhaps not to the entire membership of most deserving categories of case (such as victims of domestic violence) but at any rate to the great majority of persons in the most deserving categories (para 41).
This formulation of the statutory purpose is, it seems to the author, likely to be a useful one in future challenges to restrictions placed by contract or regulation on access to LASPO Act Sch 1 services. It acknowledges costs saving, but places need at the centre of the statutory purpose and, crucially, states that the LASPO Act is intended to meet that need almost in full.
Since the Court of Appeal judgment in this case, the Supreme Court has announced that it has given permission to appeal the Court of Appeal decision in the residence test case, R (Public Law Project) v Lord Chancellor (above). The case relates to a judicial review of the residence test for eligibility for legal aid. The issue in this case is whether the draft Legal Aid, Sentencing and Punishment of Offenders Act (Amendment of Schedule 1) Order 2014 is: (i) ultra vires the enabling statute and (ii) unjustifiably discriminatory. This will be the first major case on post-LASPO Act legal aid to reach the highest court, and so is likely to resolve, once and for all, the contrasting emphases of the courts in describing the statutory purpose.
- The original version of this article first appeared on ‘The Legal Aid Handbook’ site at: http://legalaidhandbook.com/