'Women will die' as legal aid becomes more difficult for victims of domestic abuse to get
Campaigners say the tightening of legal aid rules and budget cuts are putting victims of domestic violence at greater risk.
In recent months, domestic violence has never been far from the headlines, from reports on widespread police failures in handling cases to the closure of specialist refuges because of cuts. Most recently, the government announced a consultation on how the law could be strengthened by explicitly stating that domestic abuse covers coercive and controlling behaviour as well as physical harm.
This week it is on the agenda once again, with a fresh challenge to restrictions on legal aid for domestic abuse victims that were introduced 18 months ago as part of sweeping changes to the law and swingeing cuts to legal aid budgets.
On Monday, the Law Society held an Access to justice day at which its new president, Andrew Caplen, launched a fresh push to persuade policymakers to revisit the Legal Aid, Sentencing and Punishment of Offender Act 2012 – or Laspo as it is known – and amend what he says are significant restrictions on the legal assistance now available to victims. "The ability to get legal aid for domestic violence is much tougher" in the wake of Laspo, he says. "It's not that legal aid is not available, but it's harder to get it."
Caplen plans to make domestic abuse a priority for the Law Society over the next year and, if possible, help to remove some of the obstacles to legal aid.
The reasons that victims of abuse might need legal aid are manifold, ranging from child contact issues – say where children have remained with a partner after a mother has fled violence – to applying for an injunction against a perpetrator. After Laspo and the regulations that accompanied it, civil legal aid advice and representation was no longer routinely available for a range of cases.
The law, which came into force across England and Wales in April 2013, removed almost all private family law areas from the scope of civil legal aid. Domestic violence was named as an exception, but only under specific circumstances or with strict "evidential" eligibility requirements and a slew of conditions attached – something campaigners have argued puts onerous obstacles in the way of access to justice for the poorest and most vulnerable victims.
Campaigners and lawyers have also warned that with more than £300m to be wiped off the total civil legal aid budget by 2014-15 it would mean fewer experts for victims to turn to. The bill had a tortuous passage through parliament with peers refusing to pass it multiple times – and even when it did get through, it was with numerous amendments.
Yet a number of major hurdles remain, say campaigners, such as the requirement that victims produce mandated "evidence" that they have been domestically abused. The list of approved evidence includes a letter from a GP, time spent at a refuge or proof that a place was needed but none was available, and verification that an abusive partner has a conviction or is on bail. Caplen points to a number of serious problems with these "evidential requirements", such as that victims of domestic violence frequently don't report their abuse due to shame or fear, meaning documentation such as a letter from a GP proving their abuse is simply impossible to get. He points to research carried out by Rights of Women, Women's Aid and Women's Aid Wales a year after Laspo was introduced, which found that 43% of victims reported not having the prescribed documentation required to successfully apply for legal aid – meaning they couldn't even get to the first stage of meeting with a solicitor.
Despite non-physical abuse being included in the definition of domestic violence, it is almost impossible to prove psychological abuse, as there is unlikely to be any documentary proof that would meet the evidence requirements, says Caplen.
Another significant obstacle is that those who have experienced abuse must prove that they had a condition or injuries consistent with those of a victim of domestic violence within 24 months of making a legal aid application. Given that many victims sometimes take years to come forward, imposing such an arbitrary limit shows a fundamental lack of understanding of the nature of domestic violence and of coercion and control over an extended time period, says Polly Neate, chief executive of Women's Aid.
Emma Scott, director of Rights of Women, describes Laspo as a "fundamental attack on the rule of law". "There are women who tell us that without [access to] legal aid they are staying in abusive relationships. It is not over-dramatic to say that women will die," she says.
She points to some of the findings of a post-Laspo survey in which 46% of respondents took no action as a result of not being able to apply for legal aid while 25% represented themselves in court and almost a third paid a solicitor out of their own pocket. "We have found that victims are borrowing money and going into debt [to get legal help]," she adds. She is critical too of the "exceptional funding" scheme put in place by the Ministry of Justice (MoJ) when Laspo was enacted that was supposed to help people most in need. The scheme has come in for considerable criticism because the application process is extremely complex and there has been a miniscule success rate of applications. Scott concludes: "It is simply not the safety net the government said it would be."
There have been various legal challenges to Laspo. A government attempt to introduce a "residence test" that would have limited access to legal aid to people who have been living in the UK for more than a year was struck down by the high court on the grounds that it was discriminatory and unlawful. Campaigners had argued that it would have particularly negative ramifications for women with insecure immigration status fleeing, for example, a forced marriage. The government is appealing the high court judgment, but cases involving domestic violence will be exempt.
In June, the Public Law Project and Rights of Women, with the support of the Law Society, launched a court action to challenge the legality of the reforms, on the basis that the restrictive evidence criteria prevents survivors of domestic violence from accessing legal advice and representation in family law cases. Its judicial review is scheduled to be heard in the high court next week.
The chief executive of Citizens Advice, Gillian Guy, who with others including Caplen gave evidence to justice committee hearings on Laspo this year, suggests there is a further barrier to people getting the help they need – even where it is available. "Many people simply don't know it is there for them or how to access it," she says.
A spokesman for the MoJ said it was "closely monitoring the impact of Laspo's legal aid changes", and that it has already acted on many of the "concerns" highlighted.
The justice minister, Shailesh Vara, said the UK's legal aid budget remained "one of the most generous in the world. However, we have to ensure that it is sustainable for those who need it and for the taxpayer, who ultimately pays for it." He added: "I absolutely refute any suggestions that people will die or suffer physical harm as a result of the reforms. Where people have suffered or are suffering from domestic violence, legal aid must be available to help them break free from the abusive relationship. To ensure this is the case, we made further changes in April so it's now easier for people to get the evidence they need to make a legal aid claim for their family law case."
Who can no longer get any help?
Legal aid was first introduced in England and Wales in 1949 as part of the wide-ranging reforms to establish a welfare state. In 2010, the coalition government pledged to reduce the £2bn budget by £350m a year until 2015. This covers legal aid for both civil and criminal cases.
In civil legal aid, the introduction in April 2013 of the Legal Aid Sentencing and Punishment of Offenders Act 2012 (Laspo) means that whole categories of law are now ineligible for funding. As such, legal aid is no longer available for the following types of cases:
• Family cases where there is no proof of domestic violence, forced marriage or child abduction. There has been a 60% fall in family cases granted funding and two-thirds of cases in the family court now feature somebody representing themselves
• Immigration cases that do not involve asylum or detention
• Housing and debt matters, unless the client is at immediate risk of becoming homeless
• Welfare benefit cases – except appeals to the upper tribunal or high court that contest legal principles, as well as some judicial reviews
• Almost all clinical negligence cases
• Employment cases that do not involve human trafficking or a contravention of the Equality Act 2010.
Cases that are still eligible for civil legal aid must pass both a means test and a merits test. The means test assesses a client's income and their financial capital, the merits test analyses the likelihood of whether the case will succeed and the potential benefit to the client.
The government launched an "exceptional funding" scheme for people who are ineligible for legal aid following the changes. Between its launch in April 2013 and June 2014, the scheme received 1,789 applications; 78 were granted funding. Most applications were for family or immigration cases.
In April 2014, cuts of £215m to criminal legal aid budget began to be implemented. Half the cut has already been imposed. Fees for solicitors working in magistrates' and crown courts and in police stations were cut by 17.5%. In some circumstances, fee cuts are as high as 30%. Emma Howard