Clients from Beck Fitzgerald have put themselves forward to help us challenge two particularly unfair rules in the application of the legal aid ‘means test’.
The brilliant Public Law Project took this matter to judicial review regarding the Legal Aid Agency’s lack of discretion in refusing her legal aid; because she jointly owned a property with her abuser, even though she was a victim of domestic abuse and she could not access any of the ‘trapped capital’ in her home. Thanks to this case, the Legal Aid Agency must now exercise discretion over whether legal aid should be granted to survivors of domestic abuse where they have ‘trapped capital’ in homes which cannot be sold or borrowed against.
Our client, whose case was relied on in the legal challenge expressed her gratitude to Beck Fitzgerald: ‘They represented me and helped me pro bono, without them I would have had to face my abuser in court alone and be cross examined by him. They have helped me with everything, with my injunction, with my house and my children. I am forever grateful to them.’
The mortgage disregard
A further challenge by one of our clients, assisted by the Public Law Project and the Law Society has removed the anomalous rule which counted mortgage debt over £100,000.00 as an asset. The legal aid agency settled the case and the result is that the full value of a mortgage will not be deducted (removing the 100,000.00 cap).
The Law Society President, David Greene commented that: “there was a clear injustice in denying people legal aid on the grounds of mortgage debt. Nobody should be expected to sell their home and make themselves homeless in order to access justice. It is good news the Ministry of Justice is addressing this immediately through legislation.”
“The issue of mortgage debt is just one of many flaws in the means test that we have been highlighting to ministers. Our research has shown the means test is preventing even families living below the poverty line from accessing legal aid. This must be dealt with in the present government’s review of the means test.”
Solicitors should review and re-visit cases where they are representing client’s privately or those who were turned away as ineligible for legal aid, since this new ruling has been introduced.
PLP have prepared a helpful guide for practitioners: https://publiclawproject.org.uk/uncategorized/new-resource-for-legal-aid-practitioners-eligibility-and-trapped-capital/
Jenny is a founding director and an award-winning family lawyer committed to accessible justice and the rights of the individual. She specialises in complex financial disputes and helping resolve arrangements for children. She is an accredited Resolution specialist and an Advanced Family Law Panel member.