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The literal cost of domestic violence: Why should economics determine the legal support you need?

13 September 2023

A recent report by Watchdog has criticised the Family Courts’ handling of domestic abuse cases in private family matters.  Urgent reform has been called for by the Domestic Abuse Commissioner for England and Wales, Nicole Jacobs.

In addition to this, The Law Society of England and Wales President, Lubna Shuja, confirmed that it can be difficult to find a Legal Aid Solicitor due to the number of legal aid firms having more than halved over the last decade.

This has resulted in a large number of individuals not seeking legal representation in domestic abuse cases.  In 2022 the proportion of both applicants and respondents without legal representation in the same matter was 39%, compared to 19% where both parties did have legal representation.

Professionals were asked in the Commissioner’s Family Law Practitioner Survey what they considered to be areas for improvement in private family law proceedings, and the most common answer was being able to access Legal Aid.

What is Legal Aid?

Legal Aid is public funding that is granted by the Legal Aid Agency to individuals to help pay for legal advice, family mediation and representation in court.  However, since 2010 their annual spending has declined and following the introduction of The Legal Aid, Sentencing and Punishment of Offenders Act 2023 (LASPO) in 2012, which changed the scope of the criteria for Legal Aid, access to Legal Aid funding has become complex.  LASPO outlined conditions for accessing Legal Aid for domestic abuse cases, including a qualifying means test.

What conditions need to be met?

Individuals need to demonstrate that they have, or that they are at risk of experiencing domestic violence from the other party, and that they were in a particular relationship with that person as outlined in Section 62 of the Family Law Act 1996, for example:

• If they are or have been married.
• If they are or have been civil partners.
• If they are cohabitants or former cohabitants.
• If they are relatives.
• In relation to a child, if the individual is both parents with parental responsibility.

What evidence is required?

To access Legal Aid funding where child arrangements are also involved, individuals must provide supporting evidence as per Schedule 1 of LASPO for Domestic violence matters, or Schedule 2 for Child Protection cases, this evidence could be obtained from agencies such as:

• The Police;
• The courts;
• Multi-agency risk assessment conference;
• An appropriate health professional;
• Independent domestic or sexual violence advisor/advocate;
• Housing association; or,
• A public authority.

What is the means test?

Currently, if you are receiving a passported benefit and you do not exceed the capital threshold, you are automatically eligible for Legal Aid.

What if you own a property or receive an income?

Calculations are made regarding disposable capital and disposable income.  Capital would include any property that is owned, savings, investments and so forth. In contrast, income would include gross pay, child benefits and any other regular income from other sources with deductions made for any outgoings, such as Tax, National Insurance, mortgage payments, childcare costs and so forth.

Once all the above calculations have been made, and if an individual meets the threshold criteria they will be eligible for Legal Aid funding, or alternatively they may be asked to contribute towards some of the costs.

In a report by Surviving Economic Abuse, it was shown that the above criteria that needs to be met acts as a barrier to justice for those who have experienced domestic abuse. The report put forward several recommendations, which include:

• A review of the income threshold being undertaken;
• Consideration for some capital assets such as, a family home to not be taken into account; and,
• For the disposable income assessment to be adjusted to account for the increase in costs.

Furthermore, in March 2022, the Government published a Legal Aid Means Test Review Consultation and set out proposals for the reforms of the Legal Aid system, however, in the Domestic Abuse Commissioner’s response to this Consultation, the commissioner noted that while some of these proposals demonstrated an improvement, they did not go far enough in cases involving domestic abuse.

We can only anticipate a positive outcome of this consultation to ensure that those who have experienced domestic abuse are able to access the necessary legal representation they require and deserve.

How can we help you?

If you have, or are currently experiencing domestic abuse, regardless of whether children are involved or not, our Family Team would be more than happy to assist and support you every step of the way. We are also proud to confirm that we provide Legal Aid services in respect of this.

Our award-winning Family Team are experts in their field and work closely with Women’s Aid and other Independent Domestic Violence agencies, who are also there to support you.

If you would like a confidential chat with one of our experts, then please get in contact with our Family Team at enquiries@redkitelaw.co.uk.

This article was written by Redkite Solicitors, Sian Jones. To find out more about Sian and the support that she can provide to you, visit her website profile here.