The Court of Appeal recently decided that the existing domestic abuse gateway to private law family legal aid was unlawful because:
- It only permitted evidence within the last two years;
- It had no mechanism for proving financial abuse.
In a written statement to Parliament today, the minister gave the government’s response.
It has laid new regulations, coming into force on Monday 25 April, extending the two year period to five years, and including provision for financial abuse. It will also review the needs of victims of domestic abuse with a view to developing “evidence based” replacement regulations in the long term.
In Rights of Women, R (on the application of) v The Lord Chancellor and Secretary of State for Justice  EWCA Civ 91, the Court of Appeal found that Regulation 33 of the Civil Legal Aid (Procedure) Regulations 2012, as amended, was unlawful because it frustrates the statutory purpose of LASPO.
Reg 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. Reg 33, often known 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.
On Friday last week, the High Court gave judgment in Rights of Women, R (On the Application Of) v The Lord Chancellor And Secretary of State for Justice  EWHC 35 (Admin), a challenge to the evidence requirements (contained in regulation 33 of the Civil Legal Aid (Procedure) Regulations 2012) that must be met before legal aid in private family law proceedings can be granted based on the domestic violence exceptions.
Despite evidence of the impact the restrictions were having in practice, the Court found that they were lawful. The principal argument put forward was that, in making the regulations, the Lord Chancellor was acting outside the scope of the powers granted under LASPO. Lang J (with whom Fulford LJ agreed) said:
Rights of Women have been successful in obtaining permission to challenge the requirements to produce evidence of domestic violence/abuse as set out in Regulation 33 of the Civil Legal Aid Procurement Regulations 2012 (as amended in April 2014). They argued that the regulations are too narrowly drafted and do not give effect to Parliament’s intention to protect people who are victims of violence/abuse. ROW were represented by the Public Law Project and supported by the Law Society. A full hearing is expected before the end of the year.
The LCCSA and CLSA were also successful in challenging the consultation process in relation to the proposed tender for crime Duty Contracts. However, the application to quash the second 8.75% fee cut next year was not granted. The judgment can be downloaded here.
It now appears that the MOJ will have to run a further short period of consultation, which could make the timetable, already tight, even more challenging. The MOJ tweeted that they were considering the techical issues concerning the consulation. We await further official announcements in due course.
The first significant changes resulting from the government’s transforming legal aid proposals come into force on 2nd December 2013. The LAA have published amendments to the crime standard contract – narrowing the scope of prison law – and changes to the crime VHCC contracts implementing the 30% cut. Both sets of contract amendments are to give effect to new regulations, also coming into force on that date, which were supposed to have been published yesterday but so far have not been.
The LAA has also published updated guidance on the requirements for domestic violence evidence in private family law cases.
Links to all relevant materials can be found on our LASPO Resources page, and the new regulations will be added as soon as they are available.
UPDATE 4th November: Not all the regulations are yet on legislation.gov.uk, but the LAA has posted them all here
The government has introduced two amendments to the legal aid bill, which returns to the House of Lords next week.
The first amends the definition of domestic violence in the bill (but does not change the requirement to prove it as a pre-requisite to obtaining legal aid in private law family cases, as called for by a wide alliance of the legal aid sector.
The second brings clinical negligence back within the scope of legal aid, but only where negligence in child birth or shortly thereafter caused a neurological injury causing severe disability. This is a very small number of cases brought back within scope and, as the UK Human Rights Blog points out, is essentially arbitrary.
It remains to be seen whether this is the start of a series of concessions to get the bill through, or if the government believes it has now done enough to ensure Parliamentary support. There is still time to take part in the campaign in the Lords, and now is the time to begin lobbying MPs, as any amendments won in the Lords will also need to pass the Commons.
See also the reports in the Gazette and the Guardian.