Mother refused legal aid over 'trapped capital' has case remitted

A mother who was denied legal aid on the grounds of a house she owns with her ex-partner has won her High Court challenge, in a ruling that provides ‘important clarification for victims of domestic abuse’.

‘GR’ – who claims to have been abused by her former partner – applied for civil legal aid in 2019. However, the Legal Aid Agency (LAA) refused her application, assessing her disposable capital to be too high to qualify.

While GR receives universal credit and had just £28 in her bank account at the relevant time, she has interest in a £650,000 London house which she co-owns with her ex-partner. GR argued that the 'trapped capital' should have been valued at nil because she can neither sell nor borrow against the asset.

The High Court said the case hinged on ‘tension’ between regulations 31 and 37 of the Civil Legal Aid (Financial Resources & Payment for Services) Regulations 2013. While regulation 31 relates to the ‘value of resource of a capital nature’, regulation 37 relates to ‘interest in land’.

In GR v Director of legal aid casework, the Honourable Mr Justice Pepperall said: ‘If the proper construction of the means regulations is that the general rule under regulation 31 yields to the specific rule under regulation 37 such that the director has no discretion to attribute a reduced or no value to assets that the applicant cannot use to fund litigation then I am satisfied that some litigants on low incomes with meritorious claims will be denied legal aid despite having no realistic prospect of being able to fund their own lawyers.

‘Such situation is most likely to arise upon the breakdown of a relationship where a couple were previously able to buy a property principally upon the basis of one party’s earnings while the other either does not work or is in receipt of a very low income.’

Pepperall added he was satisfied that a fixed system for the valuation of interests in land ‘would prevent some people on low incomes who cannot access the equity in their homes from having fair and effective access to justice’. 

GR’s application for legal aid was remitted for further consideration.

The decision was widely welcomed. Law Society president David Greene said: ‘The Law Society is proud to have supported this challenge which raises issues of huge importance for access to justice for the most vulnerable. There was a clear injustice in denying victims of domestic abuse legal aid on the grounds of property they co-own with their abuser. Today’s judgment provides important clarification for victims of domestic abuse.’

Public Law Project lawyer Daniel Rourke added: ‘The judgment could also help other homeowners on low incomes who need help with a legal issue that is within the scope of legal aid and have good reasons why they cannot sell or raise money against their homes to pay for legal advice or representation privately.’