Low-income homeowners are still struggling to access legal aid

Low-income homeowners, including domestic abuse survivors, are still facing barriers to accessing legal aid, according to new Public Law Project (PLP) research, despite developments in the means test which should have brought it within their reach. Proposals to reform the means tests are a missed opportunity to remove the unnecessary obstacles faced by this group.

PLP research informed by surveys and interviews with providers, support workers, and a domestic violence charity found that, despite the changes, individuals were still unable to access legal aid in 30% of ‘trapped capital’ cases. Where selling the home is not possible, for example because a co-owner does not consent, capital in the home is counted in the means assessment but ‘trapped’ as it can’t be used to pay for representation privately when legal aid is refused.

In PLP client Claire’s case, the High Court ruled that in this situation, the Legal Aid Agency (LAA) can treat a home as being worth ‘£0’ where it is equitable to do so. Last year, guidance was updated to reflect the judgment in Claire’s case, indicating that discretion should be exercised wherever there would be a breach of ECHR rights or the common law right of access to the court.

This situation will arise wherever the home cannot be sold, private representation is unaffordable, and the person cannot effectively represent themselves. In Claire’s case, representing herself would have meant she was personally expected to cross-examine the perpetrator of her abuse. A separate challenge, brought by PLP client Rebecca, resulted in an additional change to regulations that enables the full mortgage to be deducted when valuing the property. Taken together, these changes should mean that many more low-income homeowners are able to qualify for legal aid.

However, we’re concerned to learn that homeowners with trapped capital are still struggling to access assistance. Barriers to obtaining legal aid include financial disincentives for legal aid providers, a failure by the LAA to provide adequate training to its caseworkers or information to the public, and the discretionary nature of the rules around legal aid eligibility.

We found that some respondents had dropped their application due to repeated refusals by the legal aid agency. Others felt unable to bear the administrative burden of gathering evidence of trapped capital or the financial risk of the LAA taking issue with provider assessments in the future.

It is crucial the LAA engages with these findings to remove the remaining barriers to legal aid in trapped capital cases. Trapped capital situations arise across different areas of civil law (we have come across examples in family, housing, immigration and community care). But they frequently arise in family cases concerning domestic abuse survivors.

Domestic abuse survivors who co-own their home with their abuser are often placed in an impossible position: the co-owner may not consent to sale, it may not be possible to sell the property quickly, or there may be obvious reasons why it would be contrary to the children’s best interests to do so. Selling the home is a particularly absurd suggestion when the survivor’s desire to remain in the family home with the children is the very thing they want help to secure.

The current landscape of legal aid means testing is set to change dramatically (a consultation is open until 7 June 2022). There is much to be welcomed among the proposals. Trapped capital situations will be less likely to occur if capital thresholds are raised. However, proposals to exclude low income homeowners from capital passporting and an unduly restrictive definition of when capital will be treated as ‘trapped’ mean that unfairness will continue to occur.

Overall, the complexity of the means test is set to increase, exacerbating administrative burdens, financial risk to providers and confusion caused to individuals seeking assistance. There will continue to be occasions when the Legal Aid Agency gets it wrong, with no effective remedy. Unlike decisions to refuse funding based on merits, there is no right to appeal means testing decisions to an independent third party (and no proposal to change that).

In addition, the lack of a clear timetable for making changes and the absence of a commitment to review the thresholds annually to take into account rising costs of living are also deeply concerning. If action is not taken, the means test will remain a barrier for groups that parliament clearly intended to access legal aid (such as domestic violence survivors).

We will be urging the Ministry of Justice to ensure the reformed means test addresses these issues and ensures access to advice, assistance and representation for all those groups that parliament intended.

Our full consultation response will be shared before 7 June 2022 and we will make it available to support organisations who may also wish to respond to the consultation. Our casework team remains open to referrals and frequently advises individuals who cannot access legal aid and wish to seek advice on the lawfulness of legal aid decisions.

PLP has produced a practice note and draft representations for trapped capital cases, available here. The research is available here.

Daniel Rourke is lead lawyer at Public Law Project