Justice finally? GR case clears the way for victims of domestic violence
- imt3004
- Nov 30, 2021
- 5 min read
Updated: Jan 18, 2023
By Isabella Taylor
Content Warning: discussions of gender-based violence and financial abuse
Does the director of Legal Aid Casework have the discretion to consider the accessibility of capital when establishing eligibility for legal aid?
GR answers this key question, which has big implications for victims of domestic violence in need of legal aid
Abusers will use any means to control their victims, often denying them access to any shared capital, particularly when the victim could use it to fund legal advice to bring a case against them
Facts of GR in the context of legal aid eligibility
In 2021, one in five victims of domestic violence who applied for legal aid were rejected on the basis of trapped capital, sometimes called ‘imaginary capital’ – which is money that victims had no access to and yet was taken into account when determining their eligibility for legal aid.[1] Legal aid access is determined on scope, merits and means: post the 2013 passing of the Legal Aid, Sentencing and Punishment of Offenders Act 2012 (LASPO), 80% of family law cases have been cut from the scope; the merits and means tests have also faced their own challenges in maintaining sufficient access to justice.[2] The merits test improved following a challenge to the original domestic violence gateway in R (Rights of Women) v Lord Chancellor and Secretary of State for Justice, where it was ruled to be excessively restrictive and narrow as it frustrated the purposes of LASPO.[3] The Ministry of Justice have since expanded the gateway significantly. This article will therefore focus mainly on the means test.
Despite having only £28 in her bank account,GR was denied access to justice on the basis of the trapped capital in her house.[4] The means test took into account her property, and determined that she had disposable capital, even though she had no actual access to this money. Her abuser disputed her entitlement of an equal share to the property when he attempted to force its sale. GR argued that the Legal Aid Agency should have used their discretion under 31(b) of the Means Regulations to assess the property as having ‘nil’ value, as this was the case for GR in reality, and it would have enabled her to pass the means test so that she could have a representative in court. As a result of the 2013 legal aid cuts, nearly two thirds of cases involve at least one litigant in person representing themselves.[5] This meant that GR would have to cross-examine her abusive ex-partner in person, something which inevitably would have hindered her ability to participate in the legal proceedings effectively. Had Beck Fitzgerald not taken on her case on a pro bono basis, GR would have been forced into this invidious situation.[6] The Legal Aid Agency argued that another regulation (37(2)) superseded the regulation that enabled discretion, and therefore they were unable to exercise any discretion to assess the property as ‘nil’.[7]
Outcome
The judge ruled in favour of GR, stating “that a fixed system for the valuation of interests in land… would prevent some people on low incomes who cannot access the equity in their homes from having fair and effective access to justice.”[8] It is important to note this was an acknowledgement of a discretionary power as opposed to an absolute right, but in domestic violence cases it would seem highly likely this discretion will be exercised. While there has yet to be any detailed guidance released from the Legal Aid Agency as to the implementation of this judgement,[9] the Public Law Project is already aware of domestic abuse victims who have successfully relied on the result since the end of November 2020.[10]
Importance of Strategic Litigation
It was difficult to read the GR judgement and not be confronted with how little seems to have been done in the way of reforming LASPO since 2013. The judgement tracks LASPO’s history: following 2013 there was due to be a review of the impact of the legal aid cuts within 3 years, that turned into 6 years, before it was finally reviewed and subsequently deemed inadequate and in need of repair but eight years on, constant delays have meant that nothing has been done in any meaningful way to address these issues within legal aid. Nonetheless, GR is a good example of why strategic litigation (using courts to prompt reform rather than the legislative process) is so essential when living under successive governments who are so unwilling to address the impacts of legal aid cuts.
In the end, however, no amount of strategic litigation will change the core issue that there are simply not enough funds allocated to legal aid. Parliament’s powers of introducing legislation and updating regulations, while great, cannot have a tangible impact without the necessary investment in legal aid infrastructure and remediation of the consequences of persistent cuts. Nevertheless, GR is a great result for victims of domestic violence and clears the way for more victims to have access to legal aid. It is worth noting that there is currently an inquiry happening in Parliament called ‘The Future of Legal Aid’, which focuses on what can be done for access to justice in the civil justice system, acknowledging the system has ‘fundamentally changed’ since LASPO was introduced in 2013.[11] Hopefully Parliament, the Government, and the Judiciary can continue to move in the right direction as we aspire towards a society where victims of domestic violence are able to obtain the justice they deserve.
About the author
Isabella Taylor is a second year law student at Queens’ College. She spent 18 months as a legal volunteer at Rights of Women, a legal charity designed to help women through the law. She supported the FLOWS Forum (Finding Legal Options for Women Survivors) and is dedicated to protecting access to justice for victims of gender-based violence.
References
[1] Daniel Rourke. 'Trapped' and 'imaginary' capital challenges improve access to civil legal aid. January 2021.
[2] Government Guidance. Work out who qualifies for civil legal aid. Published 1 June 2014, Last updated 4 January 2021 https://www.gov.uk/guidance/work-out-who-qualifies-for-civil-legal-aid [22.02.21]
[3] Justice. R (Rights of Women) v Lord Chancellor and Secretary of State for Justice. 2016. https://justice.org.uk/r-rights-women-v-lord-chancellor-secretary-state-justice/ [22.02.21]
[4] R (GR) v. Director of Legal Aid Casework [2020] EWHC 3140 (Admin)
[5] Jones Nickolds. The Impact of Legal Aid Cuts in Family law: 18 months on. September 2014. https://www.jonesnickolds.co.uk/news-comment/u8pzvj4jfeg91dmxhofzojs0828jsg [22.02.21]
[6] R (GR) v. Director of Legal Aid Casework [2020] EWHC 3140 (Admin)
[7] R (GR) v. Director of Legal Aid Casework [2020] EWHC 3140 (Admin)
[8] R (GR) v. Director of Legal Aid Casework [2020] EWHC 3140 (Admin)
[9] Daniel Rourke. 'Trapped' and 'imaginary' capital challenges improve access to civil legal aid. January 2021.
[10] Public Law Project. NEW RESOURCE FOR LEGAL AID PRACTITIONERS: ELIGIBILITY AND ‘TRAPPED’ CAPITAL. January 2021. https://publiclawproject.org.uk/uncategorized/new-resource-for-legal-aid-practitioners-eligibility-and-trapped-capital/ [22.02.21]
[11] UK Parliament. The Future of Legal Aid – Inquiry. September 2020 https://committees.parliament.uk/work/531/the-future-of-legal-aid/ [22.02.21]
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