UK High Court finds domestic abuse victims should not be denied legal aid due to capital trapped in a home

The High Court of England and Wales has ruled that having capital trapped in a home should not serve as a bar to victims of domestic abuse obtaining legal aid where in all other circumstances, they would qualify for it.

In 2012, the Legal Aid Sentencing and Punishment of Offenders Act made large cuts to legal aid in England and Wales. Many areas of civil and family law were removed from its scope. The qualifying criteria were significantly reduced as well meaning that even domestic abuse victims who are usually prioritised must meet a strict means test of both income and capital.

The Public Law Project supported a domestic abuse victim known as ‘Claire’ in G.R., R (on the application of) v Director of Legal Aid Casework. In 2019, Claire was denied legal aid by the Legal Aid Agency because she had capital trapped in a jointly owned home to the value of £650,000 which she shared with her former partner that could not be sold. Claire only had £28 in her bank account when she made the application for legal aid and she was a recipient of Universal Credit.

Claire sought legal aid for family law matters such as child access and custody as well as to arrange the sale of her family home.

Claire made another application for legal aid prior to this application where she sought both a non-molestation order and an occupation order against her former partner. She was denied legal aid and thus, she had no option but to represent herself. Her former partner was present with his barrister. Claire was physically sick in the court room due to her overwhelming stress and anxiety.

The High Court said the case hinged on ‘tension’ between regulations 31 (‘value of resources of a capital nature’) and 37 (‘interest in land’) of the Civil Legal Aid (Financial Resources & Payment for Services) Regulations 2013. The application of both regulations meant that the director had no discretion to attribute a reduced or ‘no value’ to assets that the applicant could not use to fund litigation. The Court was satisfied that this “fixed system... [prevented] some people on low incomes who cannot access the equity in their homes from having fair and effective access to justice.”

The Court asked for the Legal Aid Agency to revisit Claire’s application for legal aid in light of its ruling.

Click here for the full decision.



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