On 8th July 2015 the Government announced that it is removing a technicality which meant some victims of domestic abuse were losing their Legal Aid part way through a case.
As a result of cuts brought in by the Legal Aid, Sentencing and Punishment of Offenders Act (LASPO) on 1st April 2013, Legal Aid is now only available in family cases where a client can provide written proof that they have been a victim of domestic violence, or in cases involving children only, that the child has been a victim of child abuse and the client is trying to protect the child.
In this context, family cases are disputes between individuals over arrangements for children, property and finance, and divorce. Legal Aid is still available for cases in which the Local Authority is involved and children are at risk of being taken into care.
The requirement to provide proof of domestic violence has become known as the ‘gateway evidence’. Most forms of ‘gateway evidence’ must show that the client has suffered the effects of domestic abuse within the last 24 months.
The ‘gateway evidence’ is an extra tier to obtaining Legal Aid on top to the pre-existing means and merits tests. The merits test is basically that the case has a more than 50% chance of success. When the ‘gateway evidence’ requirement was brought in, the means test was also tightened up. In every case now the value of a person’s house is taken into account so even a client who is wholly reliant on state benefits may not receive Legal Aid if they own a property.
In 24 June 2014 the Ministry of Justice published figures which showed a 60% drop in Legal Aid for family cases in the first year (httpss://www.gov.uk/government/statistics/legal-aid-statistics-april-2013-to-march-2014).
The form of the ‘gateway evidence’ is set out in the Legal Aid regulations and is very prescriptive. An example is a letter from a ‘health professional’. The doctor or other medical practitioner must supply a letter or report which contains very specific information; it cannot just be their professional view that the client has been the victim of domestic abuse. The Ministry of Justice has produced some template letters which meet the requirements in full.
To view the ‘gateway evidence’ requirements in full see:
The template letters are available at: httpss://www.gov.uk/government/collections/legal-aid-cases-of-domestic-violence-and-child-abuse-letters-for-professionals#example-letters-confirming-evidence-of-domestic-violence-or-child-abuse
The concession announced on 8th July applies to cases in which clients already have Legal Aid but the ‘gateway evidence’ has expired. Prior to the cuts to Legal Aid, practitioners were given the impression that once the client had the ‘gateway evidence’ then the Legal Aid would last for as long as it was needed. It was therefore a shock to clients and lawyers alike that the Legal Aid Agency were actually withdrawing funding part way through a case if the ‘gateway evidence’ was more than 24 months old. This caused a great deal of injustice as funding was often taken away at a crucial point in a case, usually just before a final hearing. It meant vulnerable clients were left without representation and therefore potentially had to face an abusive ex partner in court alone.
Thankfully, the Ministry of Justice has agreed to change the regulations to prevent this happening in future cases.
The change was brought about as a result of lobbying by various organisation including Resolution and the Law Society. In response to the announcement Law Society president Andrew Caplen said:
‘Legal aid is a lifeline for victims of abuse and access to justice is essential in these cases. The LASPO legal aid cuts have resulted in radical consequences for access to justice with the worst impact affecting the poorest and most vulnerable sectors of society.
‘We are pleased that the government has fixed this unconsidered technicality – one which was causing serious injustice to some victims of abuse. But the over-strict tests required by the regulations still mean some survivors are excluded from accessing legal aid for family law disputes against an abusive ex-partner or relative, and we hope the MoJ will continue to work with us to resolve these problems.’
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