Legal aid practice and procedure update

It is depressing how regularly I hear about potential clients, who are seeking protection in the face of domestic abuse, being sent away and told that they need to get evidence of previous abuse to qualify for legal aid: this is thankfully not true. Schedule 1, paragraph 11 of the Legal Aid, Sentencing and Punishment of Offenders Act 2012 (‘ the LASPO Act’ ) provides for advice and representation in relation to home rights, occupation orders and nonmolestation orders under Family Law Act 1996 Part 4; and injunctions following assault, battery or false imprisonment, and under the inherent jurisdiction of the High Court to protect an adult. So as long as clients meet the means and merits tests, legal aid is available.

Clearing up the confusion

Where the confusion arises is that, under LASPO Act Sch 1, para 12, legal aid for a number of other private law matters arising out of a family relationship, for example, divorce, financial matters and arrangements for children, is only available to people who can show in very specific ways (set out in Civil Legal Aid (Procedure) Regulations (‘ the Procedure Regs 2012’) 2012 SI No 3098 reg 33 (as amended by Civil Legal Aid (Procedure) (Amendment) Regulations 2014 SI No 814 and the Civil and Criminal Legal Aid (Amendment) Regulations 2015 SI No 325) that they are the victims of ‘domestic violence’ under the wide definition finally adopted under the Legal Aid, Sentencing and Punishment of Offenders Act 2012 (Amendment of Schedule 1) Order 2013 SI No 748.

In advance of the legal challenge brought by Rights of Women (see R (Rights of Women) v Lord Chancellor and Secretary of State for Justice [2015] EWHC 35 (Admin)) , the Ministry of Justice (MoJ) amended the acceptable evidence of abuse listed in Procedure Regs 2012 reg 33(2) in April 2014. Unfortunately, the challenge was not successful, but at least the acceptable evidence was widened to some extent (see also page 7 of this issue).

Evidence of domestic violence

A significant hurdle is that legal help is not available to assist the client to obtain the evidence or to pay the costs of obtaining it, for example, a GP’s report fees. However, the Legal Aid Agency (LAA) has issued some standard letters which clients can ask the relevant agency to complete. It is advisable that they are used wherever possible as the regulations are drafted tightly and unless the wording covers all elements of the regulation precisely, the LAA cannot accept the letter as evidence.¹

Evidence generally has a 24-month backstop provision, so it may need to be updated if a new level of legal aid funding is sought. The LAA was treating an application of the extension of a certificate to cover a final hearing as a new form of legal aid (which was technically correct); however, this led to legal aid being suspended or withdrawn at the point when legal representation was most needed, so a victim could face their abuser alone in court simply because evidence had time expired. The practitioner-representative bodies raised a number of examples of clear injustice with the LAA, and from 17 July 2015 the regulations were changed so that the agency no longer needs to re-examine evidence of domestic abuse when a client moves from family

help higher to legal representation (see the Civil and Criminal Legal Aid (Amendment) Regulations 2015 SI No 1416). The July 2015 amendments also added injunctions under Protection from Harassment Act 1997 s3A to the definition of protective injunctions that can be used as evidence of domestic violence.

At present, the acceptable evidence is as follows:

• an unspent conviction for a domestic violence offence;
• a police caution for a domestic violence offence given within the 24-month period immediately preceding the date of the application for civil legal services;
• evidence of relevant criminal proceedings against the opponent for a domestic violence offence which have not concluded;
• a protective injunction against the opponent which is in force or which was granted within the 24-month period immediately preceding the date of the application for civil legal services;
• an undertaking given by another party in a family relationship within the 24-month period immediately preceding the date of the application provided that a cross-undertaking was not given by your client;
• evidence that the other party is on police bail for a domestic violence offence;
• a spent conviction for a domestic violence offence where the conviction was within the 24-month period immediately preceding the date of the application for civil legal services;
• a letter from a member of a multi-agency risk assessment conference (MARAC) confirming that the client was referred to the MARAC as a victim of domestic violence, and that the MARAC has, within the 24-month period immediately preceding the date of the application, put in place a plan to protect the client from a risk of harm by an other party in a family relationship;
• a copy of a finding of fact, made within the 24-month period immediately preceding the date of the application, that there has been domestic violence by the other party giving rise to a risk of harm to the client;
• a letter or report from a health professional confirming that a professional has examined the client within the 24-month period immediately preceding the date of the application, and is satisfied that the client had injuries or a condition consistent with those of a victim of domestic violence, and has no reason to believe that the client’s injures or condition were not caused by domestic violence;
• a letter from a social services department confirming that, within the 24-month period and immediately preceding the date of the application, the client was assessed as being, or at risk of being, a victim of domestic violence by the other party;
• a letter or report from a domestic violence support organisation in the UK confirming that the client was admitted to the refuge within the 24-month period immediately preceding the date of the application, because of allegations of domestic violence;
• a letter confirming that the client was refused admission to a refuge because of lack of accommodation;
• a referral letter or report from a health professional to a domestic violence support organisation within the 24-month period and immediately preceding the date of the application, or from the domestic violence support organisation confirming that it received such a referral;
• a domestic violence protection notice or order; or
• evidence of a bind over in connection with a domestic violence offence.

The LAA has provided detailed and helpful guidance on the operation of the evidence requirements.² This specifies in detail what is required for each piece of evidence.

You can grant a certificate for representation in court in urgent cases under ‘delegated functions’ . If you obtain an injunction for the client, it then becomes good evidence of domestic abuse and qualifies the client for legal aid in relation to the other private family law matters.

The Lord Chancellor issued guidance on the evidence requirements in 2013, which stated that the protective order had to be obtained first, but that subsequently children/finance matters could be dealt with on the same day. This guidance is no longer on the LAA’s website, but under Procedure Regs 2012 reg 39(3)( b) you can amend an emergency certificate as long as the LAA has not yet granted a substantive certificate and the amendment is required because of the urgency of the situation.

There is some debate as to whether the application for a substantive certificate submitted within five days should be for the certificate as amended under delegated functions, or whether an APP8 needs to be included, requesting an immediate amendment to the substantive certificate, to reflect the amendment already made by the practitioner. Lawyers report that there is inconsistency in LAA guidance about the correct approach (although both work eventually). Unfortunately, the client and cost management system for online applications does not seem at present to have an easy way of dealing with amendments under delegated functions.