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High Court ruling expected to widen scope of legal aid for parents

By Monidipa Fouzder >>

(9 March 2023)

The High Court’s decision in a challenge brought by a domestic abuse complainant against the Ministry of Justice will widen the scope of legal aid for parents who share caring arrangements, a public law campaign group has said.

Public Law Project announced yesterday that the High Court overturned a decision by the Legal Aid Agency to refuse legal aid to its client, Susie (not her real name), to enforce a child custody arrangement.

According to PLP, the LAA decided Susie was financially ineligible for legal aid, applying guidance from the Ministry of Justice that said a child could only be a member of one household. Susie’s child was not treated as part of her household. As a result, the amount of ‘disposable’ income she was assessed as having increased and she did not qualify for legal aid.

PLP argued in court that the lord chancellor’s guidance was unlawful because it restricts the agency from granting an allowance to parents in similar situations, whereas the regulations passed by parliament make no such restriction. It said the LAA failed to consider that the child was not living with Susie because of the ex-partner’s alleged actions.

The judgment was handed down orally and has yet to be published. But PLP said the court ruled that the means testing rules passed by parliament allow for a dependent to be treated as part of more than one household and that the judgment gives examples of children living part-time with each parent and disabled adults living part of the time with different adult family members who cared for them.

PLP solicitor Daniel Rourke, who represented Susie, said: ‘The impact of this judgment is not limited to family law and should lead to other people who share care of a dependent being able to access legal aid more easily.’

The Law Society provided indemnity against adverse costs. Head of justice Richard Miller said: ‘The LAA’s lack of flexibility in applying its rules around who can receive legal aid was clearly leading to an injustice in this case.’

Miller said Susie can now have the representation she is entitled to and will not be left to represent herself against her alleged abuser in the family court. ‘We are pleased that today’s ruling will mean more parents in similar situations can be properly represented and that this applies not only to family cases but other areas of civil legal aid,’ he added.

PLP said the MoJ will need to update its guidance to reflect the court’s ruling.

A Ministry of Justice spokesperson said: ‘We have noted this ruling and are carefully considering our next steps.’

The department said changes to its legal aid means test, announced last March, mean two million more people in England and Wales will have access to civil legal aid.

(Courtesy: The Law Society Gazette)