Public law specialists behind a High Court case that provided important legal aid clarification for low-income homeowners with ‘trapped capital’ are worried that many people are still being denied fair and effective access to justice.

In November 2020, the High Court ruled that the director of legal aid casework could use a discretion contained in the means regulations to treat a person unable to access the equity in their homes as being eligible for legal aid. 

As the Ministry of Justice consults on means test proposals, the Public Law Project (PLP) group wanted to assess the extent to which the case has improved access to justice.

In a report published today, PLP concluded that there was uneven access to legal aid for low-income homeowners with 'trapped capital' due to disincentives for legal aid providers to take on cases. PLP said the Legal Aid Agency had failed to provide adequate training to caseworkers and information to the public on 'trapped capital' cases. Barriers to legal aid due to discretionary rules on 'trapped capital' left individuals at risk of being unable to pursue their legal matter or having to represent themselves.

PLP’s research found that the limited guidance available did not make clear the types of evidence the Legal Aid Agency expects in ‘trapped capital’ situations, nor does it provide examples of ‘trapped capital situations’ where discretion should normally be exercised.

Houses

Low-income homeowners are still struggling to access legal aid

Source: Thinkstock

One charity told PLP it would not signpost women in domestic abuse cases to the LAA for advice on eligibility because it was told that several women were incorrectly advised by the LAA that they were not eligible.

The research indicated that few practitioners use delegated authority to grant legal aid to their clients due to fears that perceived wrongful use of delegated authority functions will be brought up as a performance issue in their contracts.

The report’s recommendations include specific training for LAA staff on the rules around discretion and a non-exhaustive list of examples where legal aid will be granted that practitioners and LAA staff can refer to.

A LAA spokesperson said: ‘We recognise the importance of legal aid for those most in need. That is why we set out proposals last month to expand eligibility for legal aid while ensuring those with trapped assets do not miss out on vital support.’

Following a means test review, the LAA proposes to create a mandatory disregard for inaccessible capital. A charging system would be introduced to recoup legal costs.

PLP said its research will inform its response to the LAA’s consultation, which closes on 7 June.