JUDICIAL REVIEW OF LORD CHANCELLOR – VIRES OF LEGAL AID REGULATIONS IN RELATION TO GRANT OF DOMESTIC VIOLENNCE LEGAL AID

This judicial review application against the Lord Chancellor (Legal Aid Agency (‘LAA’)) is suitable in cases where a proposed applicant for a domestic abuse order seeks legal aid; but does not have the necessary documentation because (say):

 

  • She has not suffered any actual injury, but has been ground down over the years by the behaviour of her cohabitant
  • She does not want to have to go to a doctor: she just wants an urgent order and then to rebuild her life – with court order protection – away from the parties’ former home
  • She has moved from another part of the country and genuinely does not have the evidence any more
  • Her partner has deliberately destroyed all her documents
  • She is disorganised and no longer has any of the papers sought by the LAA

 

In all of these cases the lawyer can advise that the court application has merit; and that, where need be, there is more than adequate corroboration.

 

The main issue for the Administrative Court then is: where an applicant cannot comply with the requirements of Civil Legal Aid (Procedure) Regulations 2012 (as set out in the application below) is it intra vires the regulations to require an applicant to produce documents as reg 33(2) requires (as explained below)?

 

It will be assumed that the applicant is financially eligible for legal aid.

 

 

PRECEDENT

 

IN THE QUEENS’ BENCH DIVISION

Administrative Court

 

BETEEN

 

THE QUEEN

 

On the application of

LINDA KHAN

 

– and –

 

LORD CHANCELLOR, SECRETARY OF STATE FOR jUSTICE

 

 

GROUNDS AND REASONS

 

The application and background facts

 

1                    The applicant is Linda Khan (‘LK’). She is now aged 62. She has lived with her cohabitant Barry Khan (‘BK’) and father of their children for 29 years. He is aged 58. Both children are independent and have left home; though one is willing to corroborate what her mother will say to the court.

 

2                    LK has come to the end of her tether and wishes to apply to the court for an injunction to exclude BK from their home. She knows that eventually she will have to find property of her own; but she asserts that before she moved in to live with him, BK promised that if she did so half the house would be hers; and since then she has paid half the mortgage and invested her own savings and the proceeds of a life policy into work at the house.

 

3                    LK has been advised that she has grounds to remain in the house in the medium term and that she can assert a claim against BK that she has not less than a half share in the house.

 

4                    In circumstances fully explained in her draft statement herewith, and submitted as it is to LAA with her emergency application for representation, LK left home hastily on Saturday ** June 2013, taking with her only overnight gear and a change of clothing. After years of verbal and emotional abuse, always short of actual violence, she had had enough of BK’s behaviour. On ** June she felt undermined, insulted, deeply hurt by his unkindness and weary to the point almost of oblivion. She felt finally her time had come to stand up to him and to endure no further deep nastiness. She stayed with a friend who will give evidence as to her state when she arrived.

 

5                    On Sunday ** June 2013 LK’s daughter Christine came round to see her. She is willing to give evidence for her mother. Her view, in short, is that she could not understand why her mother had for so long put up with the treatment from her father.

 

The law

 

(1)        Grant of legal aid

 

6                    Grant of a legal aid certificate under Legal Aid Sentencing and Punishment of Offenders Act 2012 (‘LASPOA 2012’) in outline, depends on the following factors:

 

(1)   The type of application which the LAP wishes to pursue

(2)   The merit of the application

(3)   The means of the applicant

 

7                    The structure of LASPOA 2012 is that under the Act the Lord Chancellor shall provide that civil legal services should be available for a person for the proceedings set out in Sch 1 to the Act. Section 9 provides for a determination as to such legal services by the Director on behalf of the Lord Chancellor as follows:

 

9 General cases

(1)Civil legal services are to be available to an individual under this Part if—

(a)they are civil legal services described in Part 1 of Schedule 1, and

(b)the Director has determined that the individual qualifies for the services in accordance with this Part (and has not withdrawn the determination).

 

8                    LK’s application is for proceedings for domestic violence, which are proceedings to be provided for by civil legal services under Sch 1 (as explained below).

 

9                    LK is financially eligible for legal aid.

 

(2)        Merit of the application

 

10                The merits criteria of an application for legal aid for civil legal services for a court application is defined by LASPOA 2012 s 11 as follows:

 

11 Qualifying for civil legal aid

(1)The Director must determine whether an individual qualifies under this Part for civil legal services in accordance with—

(a) [financial resources]

(b) criteria set out in regulations made under this paragraph.

(2)In setting the criteria, the Lord Chancellor—

(b)must, in particular, consider the extent to which the criteria ought to reflect the factors in subsection (3).

(3)Those factors are—

….(e)the nature and seriousness of the act, omission, circumstances or other matter in relation to which the services are sought,

(f)the availability to the individual of services provided other than under this Part and the likelihood of the individual being able to make use of such services,

(g)if the services are sought by the individual in relation to a dispute, the individual’s prospects of success in the dispute,

(h)the conduct of the individual in connection with services made available under this Part or an application for such services,

(i)the conduct of the individual in connection with any legal proceedings or other proceedings for resolving disputes about legal rights or duties, and

(j)the public interest.

(6)Regulations under subsection (1)(b) may provide that no criteria apply in relation to a prescribed description of individual or services.

 

11                Civil Legal Aid (Merits Criteria) Regulations 2013 have been made under s 11(1)(b). Those regulations prescribe a variety of criteria by which the merit, or prospects of success, of a claim can be judged; and in particular the standards by which a LAA decision-maker on behalf of the Director makes a decision. Thus is the Director able to make a decision on grant of civil legal services by reference to CLAMCR 2013 in accordance with s 9.

 

12                The ‘standard criteria’ for grant of legal representation are set out in CLAMCR 2013 reg 39. Those relevant to family proceedings are set out here (emphasis supplied):

 

Standard criteria for determinations for legal representation

39.  An individual may qualify for legal representation only if the Director is satisfied that the following criteria are met—

(a)the individual does not have access to other potential sources of funding (other than a conditional fee agreement) from which it would be reasonable to fund the case;…

(d)the individual has exhausted all reasonable alternatives to bringing proceedings including any complaints system, ombudsman scheme or other form of alternative dispute resolution;

(e)there is a need for representation in all the circumstances of the case including—

(i)the nature and complexity of the issues;

(ii)the existence of other proceedings; and

(iii)the interests of other parties to the proceedings;…

 

13                ‘Legal representation’ within the terms of CLAMCR 2013 reg 18 means ‘full representation’. It is this level of representation which is relevant to LK’s application.

 

14                By CLAMCR 2013 reg 64 defines ‘standard criteria for full representation’ for amongst others, domestic violence cases, and that two of the standard criteria are excluded (already eliminated from the above list as irrelevant to family proceedings: ie inappropriate for a CFA or to be allocated to the small-claims track) are with in the ‘standard criteria for determination Civil Legal Aid (Merits Criteria) Regulations 2013 reg provides that standard criteria do not apply to domestic abuse cases as follows:

 

Standard criteria for determinations for full representation in relation to certain family disputes

64.—(1) For the purposes of a relevant determination the criteria in—

(a)regulation 39(a) and (c) to (e) (standard criteria for determinations for legal representation) apply; and

(b)regulations 39(b) and (f) (standard criteria for determinations for full representation) and 41 to 44 (criteria for determinations for full representation) do not apply.

(2) In this regulation, a relevant determination is a determination for full representation in relation to—

(a)a domestic violence case;

 

15                Thus, straightening out the double negatives, the applicant deduces the following:

 

(1)   That she must have no other source of ‘potential’ funding

(2)   No one else can bring the proceedings who might benefit

(3)   All other reasonable alternative to the proceedings have been tried

(4)   The nature and complexity of the proceedings justifies representation

 

16                LK asserts that she has no access to potential or other funding. No one else directly benefits from the application (though her daughters will be pleased if the has a quieter life). Mediation is not appropriate in this case. The need for representation in such an application as this is justified both by the law involved and the potential for dangerous confrontation – dangerous to LK – if she is not represented.

 

17                Under reg 39 the applicant need not establish any of the cost benefit, prospects of success criteria under reg 42 and 43 (reg 44 does not apply). CLAMCR 2013 reg 67 makes further provision for domestic violence cases; but its net result seems only to duplicate reg 64, save for requiring that the Director be satisfied that the ‘proportionality test’ is satisfied.

 

18                The proportionality test is set out in CLAMCR 2103 reg 8 thus:

 

Proportionality test

8  For the purposes of these Regulations, the proportionality test is met if the Director is satisfied that the likely benefits of the proceedings to the individual and others justify the likely costs, having regard to the prospects of success and all the other circumstances of the case.

 

19                In effect the prospects of success test does not apply to domestic violence cases (reg 67(2)(b): which eliminates reference to all restrictions due to ‘prospects of success’ save where the prospects are ‘unclear’, per reg 5).

 

(3)        Family Law Act 1996 Part 4/ [other forms of injunction proceedings or Family Law Act 1996 Part 4A

 

20                Family Law Act 1996 Part 4 enables a person in LK’s position to apply to [the family court] for an order that…

 

21                [Here set out in summary the relevant law in relation to domestic violence: ie here under Family Law Act 1996; but it might be Protection from Harassment Act 1997 etc]

 

22                [Here set out the standard of proof required of an applicant and the evidence required in support]

 

23                It will therefore be said on LK’s behalf, and subject to the legal aid provisions referred to below, that her court application has merit and that an order will be granted to her by the judge if she is able to make her application.

 

(3)        ‘Domestic violence’ and legal aid

 

24                Under LASPOA 2012 s 9(1)(a) and Sch 1 para 12(9):

 

‘domestic violence’ means any incident of threatening behaviour, violence or abuse (whether psychological, physical, sexual, financial or emotional) between individuals who are associated with each other;

 

25                Under CLAMCR 2013 reg 2 (interpretation) a ‘domestic violence case’ is defined to include the above and proceedings under Sch 1 para 16 (forced marriage cases). The criteria for determination of an application for legal aid are set out in reg 67 (above). The question then arises as to what powers the Lord Chancellor has to make delegated legislation to deal with the process of application by LK.

 

26                LASPO 2012 s 41 gives the Lord Chancellor regulation-making powers which are limited to the following:

 

(3)Orders and regulations under this Part—

(a)may provide for a person to exercise a discretion in dealing with any matter,

(b)may make provision by reference to a document produced by any person, and

(c)may make consequential, supplementary, incidental, transitional or saving provision.

 

27                This provision defines the extent to which Parliament has permitted the Lord Chancellor to deal with legal aid. The procedure for grant must now be considered in the light of this and any other relevant enabling provision in LASPOA 2012.

 

(4)        Procedure for grant

 

28                Determination of applications for legal services are set out in LASPOA 2012 thus:

 

12 Determinations

…(2)Regulations may make provision about the making and withdrawal of determinations under sections 9 and 10.

(3)Regulations under subsection (2) may, in particular, include—

(e)provision about conditions which must be satisfied by an applicant before a determination is made,…

(g)provision requiring information and documents to be provided,

 

29                Procedure for grant of legal aid is in Civil Legal Aid (Procedure) Regulations 2012 (‘CLAPR 2012’). These deal with the various categories of legal aid which are available. At Part 4 the regulations deal with ‘licensed work’ which is defined as ‘legal representation’ other than forms of legal representation which do not apply here.

 

30                Applications by a person ‘contemplating’ the issue of civil proceedings are made in accordance with CLAPR 2013 reg 30(1)(c)). Reg 31 prescribes the form and content of the application. Reg 33 deals with domestic violence under Sch 1 Part 1 para 12 (ie not including forced marriage) and in particular with the ‘supporting documents’ said to be required by the rules to support an application.

 

(5)        Domestic violence

 

31                Under the heading ‘Victims of domestic violence and family matters’ LASPOA 2012 Sch 1 para 12 deals with what is domestic violence for legal aid purposes. Civil legal services are to be provided for proceedings in relation to ‘domestic violence’ as follows:

 

12(1) Civil legal services provided to an adult (“A”) in relation to a matter arising out of a family relationship between A and another individual (“B”) where—

(a)there has been, or is a risk of, domestic violence between A and B, and

(b)A was, or is at risk of being, the victim of that domestic violence.

 

32                The paragraph then goes on to provide for ‘General exclusions’ none of which apply to domestic violence applications

 

33                Para 12 concludes with a series of definitions for terms which occur in para 12. These definitions are likely to be treated as applicable also in any delegated legislation applicable to para 12 and domestic violence (save where otherwise defined: eg see ‘domestic violence cases’ above).

 

(7)For the purposes of this paragraph—

(a)there is a family relationship between two people if they are associated with each other, and

(b)“associated” has the same meaning as in Part 4 of the Family Law Act 1996 (see section 62 of that Act).[1]

(8)For the purposes of this paragraph—

(a)matters arising out of a family relationship include matters arising under a family enactment, and

(b)(subject to paragraph (a)) the Lord Chancellor may by regulations make provision about when matters arise out of a family relationship.

(9)In this paragraph—

“adult” means a person aged 18 or over;

“domestic violence” means any incident of threatening behaviour, violence or abuse (whether psychological, physical, sexual, financial or emotional) between individuals who are associated with each other;

“family enactment” means—

(a) section 17 of the Married Women’s Property Act 1882 (questions between husband and wife as to property);

(b) the Maintenance Orders (Facilities for Enforcement) Act 1920;

(c) the Maintenance Orders Act 1950;

(d) the Maintenance Orders Act 1958;

(e) the Maintenance Orders (Reciprocal Enforcement) Act 1972;

(f) Schedule 1 to the Domicile and Matrimonial Proceedings Act 1973 (staying of matrimonial proceedings) and corresponding provision in relation to civil partnerships made by rules of court under section 223 of the Civil Partnership Act 2004;

(g) the Matrimonial Causes Act 1973;

(h) the Inheritance (Provision for Family Dependants) Act 1975;

(i) the Domestic Proceedings and Magistrates’ Courts Act 1978;

(j) Part 3 of the Matrimonial and Family Proceedings Act 1984 (financial relief after overseas divorce etc);

(k) Parts 1 and 3 of the Family Law Act 1986 (child custody and declarations of status);

(l) Parts 1 and 2 of the Children Act 1989 (orders with respect to children in family proceedings);

(m) section 53 of, and Schedule 7 to, the Family Law Act 1996 (transfer of tenancies on divorce etc or separation of cohabitants);

(n) Chapters 2 and 3 of Part 2 of the Civil Partnership Act 2004 (dissolution, nullity and other proceedings and property and financial arrangements);

(o) section 54 of the Human Fertilisation and Embryology Act 2008 (applications for parental orders).

 

(6)        Legal aid for domestic violence

 

34                CLAPR reg 33(1) requires that an application must include ‘evidence of the domestic violence’ (emphasis added).  The insistence on ‘the’ domestic violence – suggesting that only the immediate incident is all that will be included in any application to the court – is impractical. In fact, much of the evidence for an order, and thus for determining the merits criteria for the application, will be in the past. It is assumed that the Director will exercise his/her discretion accordingly.

 

35                The applicant, in her evidence, and to justify her application must speculate about the future. LK says that she assumes that BK’s behaviour – especially now that she has dared to leave the house – will accelerate in its worsening.

 

36                Regulation 33(2) then goes on to set out an inclusive list of documents which ‘must be provided’ by an applicant for civil legal services in the following terms:

 

33… (2) For the purpose of paragraph [33](1), the evidence of domestic violence[2] or risk of domestic violence must be provided in one or more of the following forms—

(a)a relevant unspent conviction for a domestic violence offence;

(b)a relevant police caution for a domestic violence offence given within the twenty four month period immediately preceding the date of the application for civil legal services;

(c)evidence of relevant criminal proceedings for a domestic violence offence which have not concluded;

(d)a relevant protective injunction which is in force or which was granted within the twenty four month period immediately preceding the date of the application for civil legal services;

(e)an undertaking given in England and Wales under section 46 or 63E of the Family Law Act 1996 (or given in Scotland or Northern Ireland in place of a protective injunction)—

(i)by the individual (“B”) with whom the applicant for civil legal services (“A”) was in a family relationship giving rise to the need for the civil legal services which are the subject of the application; and

(ii)within the twenty four month period immediately preceding the date of the application for civil legal services,

provided that a cross-undertaking was not given by A;

(f)a letter from the person appointed to chair a multi-agency risk assessment conference confirming that—

(i)A was referred to the conference as a high risk victim of domestic violence; and

(ii)the conference has, within the twenty four month period immediately preceding the date of the application for civil legal services, put in place a plan to protect A from a risk of harm by B;

(g)a copy of a finding of fact, made in proceedings in the United Kingdom within the twenty four month period immediately preceding the date of the application for civil legal services, that there has been domestic violence by B giving rise to a risk of harm to A;

(h)a letter or report from a health professional confirming that the professional—

(i)has examined A within the twenty four month period immediately preceding the date of the application for civil legal services;

(ii)was satisfied following that examination that A had injuries or a condition consistent with those of a victim of domestic violence; and

(iii)has no reason to believe that A’s injures or condition were not caused by domestic violence;

(i)a letter from a social services department in England or Wales (or its equivalent in Scotland or Northern Ireland) confirming that, within the twenty four month period immediately preceding the date of the application, A was assessed as being, or at risk of being, a victim of domestic violence by B (or a copy of that assessment);

(j)a letter or report from a domestic violence support organisation in the United Kingdom confirming—

(i)that A was, within the twenty four month period immediately preceding the date of the application for civil legal services, admitted for a period of twenty four hours or more to a refuge established for the purpose of providing accommodation for victims of, or those at risk of, domestic violence;

(ii)the dates on which A was admitted to and, where relevant, left the refuge; and

(iii)that A was admitted to the refuge because of allegations by A of domestic violence.

 

37                None of these documents is mentioned by Parliament in the Act; nor is there any power given to the Lord Chancellor specifically to require documents to be produced as a condition of grant of legal aid.

 

38                LK does not have with her, nor would she have access to at home, any of the above documents. She has corroborative evidence (to satisfy reg 33(1)).

 

39                LASPOA 2012 s 41(3)(b) (see above) enables the Lord Chancellor to make regulations which ‘make provision by reference to a document produced by any person’; though it is not entirely clear what this may mean. It suggests a positive power; not a negative or restrictive provision in the nature of reg 33(2).

 

40                Accordingly it will be submitted here that the requirements of reg 33(2) are unlawful: Parliament did not provide for the Lord Chancellor to proceed as he has done.

 

41                It will be recalled that domestic ‘violence’ is defined in terms which are more extensive than violence, namely:

 

‘any incident of threatening behaviour, violence or abuse (whether psychological, physical, sexual, financial or emotional) between individuals who are associated with each other’.

 

42                LK has been threatened with abuse over many years; and has been put in real fear of violence. She has never wished to involve a third party – police, doctor or any others – in her affairs. By definition she has no documentary evidence to corroborate what she says.

 

43                Because she does not have any of the prescribed documents, or indeed any other documents which the regulations require the Director and his decision-makers will not allow her representation. Her application for civil legal services has been turned back.

 

Disposal

 

44                Parliament did not intend that the Lord Chancellor should proscribe assistance for people such as LK in the circumstances in which she finds herself. The policy of the Act is to reduce the number and types of proceedings substantially from those which were permitted legal aid prior to the Act. There is no evidence that its policy was intended to make grant for those applicants eligible on financial and type of proceedings grounds, ineligible because of the minutiae of evidence prescribed by regulations (Padfiled); and there is no statutory provision empowering such prescription.

 

45                It will be further submitted that the standard criteria for grant, and the merits and prospects of success of an application, is properly tested by the prospects of a judge granting the order sought by the court application on the evidence available (as envisaged by CLAPR 2012 reg 33(1); not by the exhaustive list in reg 33(2). Parliament envisaged only what is contained in reg 33(1).

 

46                Indeed it might be said by some judge’s that the nature of what is required by reg 33(2) is sometimes not relevant to the injunction issue before the court; and that it needlessly over-evidences a case. It is not always necessary to over-react in cases of this nature to achieve the order required. Evidence which is up to two years old might be found to be disproportionate in many cases. The very requirement of reg 33(2) in themselves might thereby be treated as unlawful as outside rules of evidence to an extent not provided for by Parliament.

 

47                Regulation 33(2) is accordingly unreasonable. It is unlawful and made without vires in the Lord Chancellor. The applicant seeks that it should be declared a nullity.

 

48                The Lord Chancellor via the LAA director should determine LK’s application for civil legal services accordingly, that is to say without reference to the provisions of CLAPR 2012 reg 33(2).

 

 

AND THE APPLICANT claims:

(1)   A declaration that making of Civil Legal Aid (Procedure) Regulations 2012 reg 33(2) is unlawful

(2)   A mandatory order that LK be granted a determination for civil legal services for domestic violence without regard to Civil Legal Aid (Procedure) Regulations 2012 reg 33(2)

(3)   Costs

 

David Burrows

 

 


[1] Family Law Act 1996 s 62 (3)For the purposes of this Part, a person is associated with another person if—

(a)they are or have been married to each other;

[F6(aa)they are or have been civil partners of each other;]

F6(b)they are cohabitants or former cohabitants;

(c)they live or have lived in the same household, otherwise than merely by reason of one of them being the other’s employee, tenant, lodger or boarder;

(d)they are relatives;

(e)they have agreed to marry one another (whether or not that agreement has been terminated);

[F7(ea)they have or have had an intimate personal relationship with each other which is or was of significant duration;]

[F8(eza)they have entered into a civil partnership agreement (as defined by section 73 of the Civil Partnership Act 2004) (whether or not that agreement has been terminated);]

F8(f)in relation to any child, they are both persons falling within subsection (4); or

(g)they are parties to the same family proceedings (other than proceedings under this Part).

(4)A person falls within this subsection in relation to a child if—

(a)he is a parent of the child; or

(b)he has or has had parental responsibility for the child.

[2] LAA required also to second guess the court: it is for the judge to assess evidence; the LAA only considers of the case has a prospect of success

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