Catch-33: Stringent documentary requirements upheld for legal aid in domestic violence cases- Vanessa Long and Adam Smith

28 January 2015 by Guest Contributor

R (on the application of Rights of Women) v Secretary of State for Justice [2015] EWHC 35 (Admin) – read judgment

Neil Sheldon and Alasdair Henderson (instructed by The Treasury Solicitor) acted for the Defendant in this case. They have nothing to do with the writing of this post.

The campaign group Rights of Women has been unsuccessful in its judicial review of Regulation 33 of the Civil Legal Aid (Procedure) Regulations 2012 (as amended) which sets out the list of documents which will be accepted as evidence that a legal aid applicant has suffered or is at risk of suffering domestic violence. The Legal Aid, Sentencing and Punishment of Offenders Act 2012 (LASPO) purports to retain legal aid for victims of domestic violence. However, such funding is only available where at least one of the documents listed in Regulation 33 is submitted to the Legal Aid Agency.

A report published by Rights of Women in November 2014 found that 38% of those surveyed who had experienced domestic violence stated that they were unable to provide any of the necessary documents set out in Regulation 33. A further 23% of respondents stated that they would be able to provide the necessary documents if the 2 year time limit for documents was not in place.

Lang J conceded that Regulation 33 may restrict access to legal aid to genuine victims of domestic violence. But it did not follow that the regulation was ultra vires or unreasonable.

Legislative Background

Under LASPO, which came into force on 1 April 2013, civil legal aid ceased to be available in all cases, except those set out in Part 1 of Schedule 1 of the Act, which includes provision to actual or potential victims of domestic violence Section 12(2) of LASPO enables regulations to be created in relation to the determination of applications for legal aid. Section 12(3) provides a list of subjects about which regulations can be made, including:

(a) provision about the form and content of determinations and applications for determinations […]

(c) provision setting time limits for applications and determinations […]

(e) provision about conditions which must be satisfied by an applicant before a determination is made […]

(g) provision requiring information and documents to be provided […]”

The Secretary of State subsequently introduced the Civil Legal Aid (Procedure) Regulations 2012, including Regulation 33, which became the subject of these proceedings. Under Regulation 33 the Legal Aid Agency retains no discretion to accept forms of evidence and/or documents not set out in that regulation.

Arguments before the court

Rights of Women sought to challenge Regulation 33 of the 2012 Regulations on the basis that it was ultra vires of section 12(2) of LASPO as it substantively restricts the definition of domestic violence by requiring the provision of specific documents to the Legal Aid Agency which many genuine victims of domestic violence are unable to produce. Further and/or alternatively, Rights of Women alleged that Regulation 33 attempted to thwart the purpose of LASPO, which was to provide legal aid to victims of domestic violence.

Rights of Women asserted that the main features of Regulation 33 which prevented access to legal aid by victims of domestic violence were:

1. documents must be no more than 2 years old;
2. it will be very difficult for victims of emotional or psychological abuse to obtain the required evidence and there was no provision for financial abuse or controlling/coercive behaviour;
3. it is virtually impossible for applicants at risk of domestic violence to provide the necessary evidence;
4. only evidence which has come to the attention of the courts or statutory agencies is acceptable; and
5. the Legal Aid Agency retain no discretion to accept documents not listed.

The Secretary of State alleged that section 12 of LASPO gave power to include more stringent criteria to obtain legal aid in Regulation 33, in particular regarding the evidence to be provided to the Legal Aid Agency to establish that the criteria for granting legal aid were met. Further, he alleged that the purpose of LASPO was not to provide legal aid to all victims of domestic violence, but to provide assistance to victims of domestic violence who would be unfairly prejudiced in court without such assistance. As such, he was entitled to put into place objective evidential requirements to ensure that resources were focused on the victims of domestic violence most in need of such assistance.

The case was brought by Rights of Women as opposed to an individual, as each time an individual applicant had commenced the pre-action protocol to judicially review the documentary requirements in Regulation 22 the Legal Aid Agency responded by granting the requested legal aid. The High Court was satisfied that Rights of Women had shown a “good arguable case that some victims of serious domestic violence, who are genuinely in need of legal aid, cannot fulfil the requirements of regulation 33” and accordingly proceeded to give substantive judgment on the case.

The court’s judgment

Lang J, delivering the judgment of the court, concluded that Regulation 33 was not ultra vires on the basis that section 12(3)(g) of LASPO specifically provided for regulations to be made requiring “information and documents to be provided”. It was held that Regulation 33 was procedural in nature, but that even if were considered to be substantive, it was still within the power of section 12 of LASPO. It was stated that the challenge by Rights of Women was “to the manner in which the power has been exercised, not the scope of the power.”

In relation to the allegation that Regulation 33 thwarted the purpose of LASPO, the judge placed much emphasis on the witness statement of Mr Parsons, Head of Family and Immigration Legal Aid at the Ministry of Justice, which set out quotes from the consultation paper entitled “Proposals for the Reform of Legal Aid in England and Wales” published on 10 November 2010 and the Government’s response to the consultation in June 2011. Mr Parsons was quoted at paragraph 3 of his witness statement:

From the outset the legislative and policy intent was to ensure that those victims of domestic violence who genuinely require assistance in court proceedings were able to obtain legal aid.

Mr Parsons was further quoted in the judgment at paragraph 60 stating:

[t]he policy intention is to provide legal aid where an individual will be materially disadvantaged by facing their abuser in court, not simply to provide open-ended access to legal aid for domestic violence. The time limit provides a test of the on-going relevance of the abuse.

Lang J concluded that the primary purpose of LASPO was to remove legal aid funding in civil cases, except in exceptional circumstances. As such Parliament was entitled to grant legal aid to victims of domestic violence “in certain circumstances and subject to the fulfilment of certain conditions.” It was held that Parliament could have chosen to do so by giving the Legal Aid Agency discretion in relation to cases of domestic violence. However, the adoption of a “set of prescriptive and inflexible evidence requirements” was justified for two reasons:

1. individual eligibility assessments would have been “burdensome and expensive”;
2. strict evidential requirements provide “clarity and consistency” which assists legal professionals to advise their clients appropriately about their eligibility for legal aid.

The judge further accepted the Secretary of State’s submission that meritorious applications for funding might fail under any system, whether prescriptive or flexible, owing to the applicant’s inability to provide sufficient evidence. Rights of Womens’ submission that the documentary requirement made it impossible to evidence risk of domestic violence was expressly rejected. Accordingly, Lang J did not consider that, despite the “justifiable criticisms of regulation 33, the defendant’s chosen method of establishing eligibility

was an exercise of discretion that went so far as to thwart or frustrate the purpose of the Act. It was a legitimate means of giving effect to the Act’s intention to take family law proceedings outside the scope of legal aid, whilst preserving legal aid for the exceptional category of victims of domestic violence in need of protection in family law proceedings. Whilst the evidence in this case indicates that it may not be operating effectively in practice, that is a matter for the Defendant, and ultimately Parliament, to address. [authors’ emphasis]

She went on to state that whether a denial of legal aid funding constituted a breach of the right to a fair trial would need to be determined on a case-by-case basis. However, it was highlighted that section 10 of LASPO (which provides for funding in exceptional circumstances) specifically excluded the provision of legal aid to victims of domestic violence. Despite permission for judicial review being refused on human rights grounds the judge observed that as it was unlawful for a public authority to act in a way which is incompatible with a Convention Right, this issue required “urgent review” by the defendant.

Comment

The Secretary of State’s assertion, that Regulation 33 was intended to restrict civil legal aid to only those victims of domestic violence who genuinely required assistance, could have been examined in further detail. The High Court accepted that Regulation 33 was a legitimate way to achieve this aim despite the arbitrary nature of the evidential requirements, as it found that a more individualised assessment could also have led to denial of funding in certain circumstances.

However, the time limit of 2 years would in many instances, and contrary to the Secretary of State’s assertions, not be relevant to whether domestic abuse was ongoing, where, for example, court proceedings or a visit to a health professional relates to historic abuse and where individuals who are imminently in danger have not yet brought this to the attention of officials. Further, a victim of serious abuse which occurred more than two years ago may be far more in need of representation than a current victim of abuse which is less serious. In addition, Regulation 33(2)(e) provides that an undertaking made under section 46 or 63E of the Family Law Act by the alleged abuser is only acceptable to establish domestic violence where no cross-undertaking was given by the legal aid applicant. As it is common practice for a victim of domestic violence to give a cross-undertaking as a concession to ensure that the undertaking is made this subsection could have the effect of routinely denying victims of ongoing abuse necessary legal aid funding. In our view such aspects of Regulation 33 could have led to a finding of unreasonableness owing to the fact that the documentary criteria do not adequately identify the individuals most in need of assistance and merely provide an arbitrary basis on which to restrict the number of individuals eligible for legal aid.

It is unfortunate that the High Court did not take this opportunity to prevent such arbitrary requirements which have such an adverse impact on vulnerable individuals who require legal representation.

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