The Legal Aid Agency (LAA) recently deemed a woman ineligible for legal aid after
claiming that she had no dependants because her son did not live with her. A woman
and her abusive former partner had agreed contact arrangements of their child,
however, the ex-partner violated their arrangement and limited the woman’s contact
with their son. In an attempt to gain more access to her son, she applied for legal aid
in order to take the matter to court with legal representation. The LAA determined
that because the child did not currently reside with her, he couldn’t be considered as
her dependant. As a result, this placed her disposable income as over the threshold
used to determine whether an individual is eligible.
Legal aid assists individuals who do not possess the means to afford the legal help
that they are seeking. In civil cases, the amount of financial assistance that an
individual receives is determined by the LAA assessing that person’s means and
merits. The merits in a case refers to the individual’s likelihood of success. The
means in a case pertains to one’s financial situation regarding income and capital.
Dependants are also typically included in the LAA’s assessment of an individual’s
eligibility for financial assistance. When the LAA evaluates an individual’s disposable
income, they remove approximately £307.64 for each child dependant.
Given the LAA’s inadequate assessment of the woman’s financial situation, she took
the decision to the High Court being represented by the Public Law Project, in order
to have the decision overturned. The matter was heard on 8 th March 2023.
At the hearing, the High Court overturned the LAA’s decision to refuse legal aid to
the Applicant. It was successfully argued that the guidance provided by the Lord
Chancellor to the LAA was unlawful in that it restricts the LAA’s ability to assist
parents in this situation. It was also successfully argued that the LAA had failed to
consider why the child was not living with the mother. The Judge did not concede in
respect of the final argument put forward as to whether the Applicant’s rights had
been breached under Article 6 and Article 8 of the European Convention of Human
Rights.
The judgement obtained on 8th March 2023 has now set the precedent for future
applications for legal aid. Now, parents who share care arrangements of their
children are more likely to qualify for legal aid within civil law.
Author
Busola Oyenekan / Rachael Brown
Solicitor / Paralegal
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