This case is a successful challenge in the High Court to the decision of the Director of Legal Aid Casework (“DLAC”), supported by the Lord Chancellor, to prevent victims of domestic violence who jointly own property with their abuser from receiving legal aid.
The Claimant, a victim of domestic violence, sought legal aid for family proceedings relating to the custody of her children. She jointly owns a property with her abuser, but cannot sell or borrow against it without his consent. The abuser has withheld his consent, which means that the Claimant cannot pay for legal representation. The DLAC decided that she has no power to grant legal aid in these circumstances, even if that meant that the Claimant would be unable to participate in the family proceedings.
Mr Justice Pepperall held that the DLAC does have a discretion to value an applicant’s capital assets in such manner as appears to her to be equitable, save in respect of the valuation of money. Such construction is consistent with and gives effect to the Lord Chancellor’s purpose of honouring the state’s obligations under Articles 6 and 8 of the European Convention on Human Rights.
Pepperall J was satisfied that, on the DLAC’s interpretation of the regulations, if she has no discretion to attribute a reduced or no value to assets that an applicant cannot use to fund litigation, then some litigants on low incomes with meritorious claims will be denied legal aid despite having no realistic prospect of being able to fund their own lawyers. Some people would therefore be prevented from having fair and effective access to justice.