2012 was the year for Family practitioners where their heart sank. Following the introduction of the Legal Aid, Sentencing and Punishment of Offenders Act 2012, Legal Aid was drastically cut meaning that in civil proceedings it was only available for victims of domestic abuse who owned very few assets and received a low income. For Family practitioners, this has become increasingly frustrating over the years, as we find that those who desperately need legal assistance are often not eligible.

When applying for Legal Aid, the Legal Aid Agency consider your income, capital and whether you are a victim of Domestic Abuse. Individuals who are victims of abuse can often satisfy the income test, they may be in receipt of the passporting benefit Universal Credit or receive a low income, however where they can often fall short is on the capital test. The capital test looks at what assets you own and how much money you have in your bank account. Frustratingly, some individuals can fail the test because they own a home. Consequently, the Legal Aid Agency deem that the individual has ‘capital’ and therefore money to spend on legal proceedings.

In reality, this is often not the case. Whilst an individual may own a home and have equity in that property, this does not mean that they can access that equity easily. Often an individual may jointly own the property with their abuser, and they cannot simply sell the Family home. Whilst there are mortgage and equity allowances, for some individuals they may still exceed the gross capital limit.

However, in a recent child custody case, Mr Justice Pepperall concluded that a single parent and domestic abuse survivor who had only £28 in her bank account should not have been refused Legal Aid. According to campaigners, this decision means that the Legal Aid Agency can adopt a less restrictive approach over the granting of Legal Aid to survivors of domestic abuse, where they have what is called ‘trapped capital’ in homes which cannot be sold or borrowed against.

This is fantastic news to Family lawyers across the country who provided help under Legal Aid. It can often mean that victims do not have to face their abusers in court alone without representation. It is therefore advised that any victim who satisfies the income test but owns a property should be considered by the Legal Aid Agency for public funding. It is essential that a thorough Legal Aid application is made to the Legal Aid Agency in order to be assessed.

Our award winning Family team have a wealth of experience in Legal Aid applications. If you would like to see whether you are eligible for Legal Aid, please freephone our team on 0800 8 60 62 65.

Victoria Jones – Trainee Solicitor