09 May High Court grants permission for disabled survivor of domestic violence to challenge the Legal Aid Agency’s guidance on financial eligibility for legal aid
The Claimant, a disabled survivor of domestic abuse, has been granted permission to proceed with her judicial review challenge of the Legal Aid Agency’s (“LAA”) policy of treating backdated Personal Independence Payments (“PIP”) as capital, which currently prevents individuals such as the Claimant from accessing legal aid and thereby interferes with their access to justice.
The Claimant is a survivor of domestic abuse who sought legal aid to bring a judicial review challenge to the police’s decision to take No Further Action in relation to ongoing harassment she had reported by her former abuser.
The LAA granted an emergency legal aid certificate allowing the Claimant to issue her claim, but subsequently decided that as the Claimant had received a backdated PIP payment several weeks before her legal aid application, she would have to pay a sizeable contribution towards her legal costs or else her legal aid would be cancelled. That decision was a consequence of the LAA treating the backdated PIP payment as capital, rather than as income which would have meant it would be disregarded from the financial assessment of the Claimant’s means. Without legal aid, the Claimant could not continue her claim, but paying the contribution meant that the Claimant could not use the PIP payment for the purpose it was awarded: meeting her disability-related expenses including leasing the mobility vehicle she needed.
The Claimant issued judicial review proceedings challenging the LAA’s treatment of backdated PIP payments as capital and not income, arguing that it should have been treated as income and therefore disregarded from the financial assessment.
The High Court will now consider the lawfulness of the LAA’s guidance at a hearing.
Importance of this challenge
The claim has wide-reaching implications for access to justice. Treating backdated PIP payments as capital results in the LAA refusing legal aid or requiring disabled applicants to use money intended to meet their disability needs on their legal aid costs. Without legal aid, the reality is that those on low incomes are unlikely to be able to pursue their cases. If the LAA’s policy in relation to backdated PIP payments is found to be unlawful, this will result in countless more people being eligible for legal aid.
Solicitor Clare Jennings says:
“The LAA’s current approach means that disabled people, including survivors of domestic abuse such as the Claimant, are deprived of their fundamental right to access the justice system. It is crucial that all people are able to seek legal redress for wrongs committed against them, whilst at the same time being able to put the financial support they receive from the government towards its rightful purpose of covering their disability-related expenses. The government purposefully legislated that PIP payments should be disregarded when assessing a legal aid applicant’s income and I do not believe it was ever intended that this provision should be side-stepped by treating PIP payments as capital. It cannot be right that a disabled person is penalised because of the processing times for determining PIP applications. By treating backdated PIP payments as capital, the LAA is undermining the PIP regime and denying disabled persons access to justice.
The Claimant says:
““This is an extremely important issue for anyone who has claimed PIP or a similar benefit and then applied for Legal Aid. Why should I suffer because of the Legal Aid Agency’s failure to understand the PIP process? I believe the Legal Aid Agency should be aware of this process. I am simply a disabled victim and survivor of domestic abuse trying to get justice”.
- The Claimant is represented by Clare Jennings, Director and Elinor Kirchwey, Trainee Solicitor at Gold Jennings and Tim Buley KC at Landmark Chambers.
- Under the Civil Legal Aid (Financial Resources and Payment for Services) Regulations 2013, in order to be eligible for civil legal aid a person must have disposable income and capital below specific thresholds. The Regulations state that certain income streams, including PIP, should be disregarded for the purposes of calculating disposable income. Therefore, PIP when received weekly will not be taken into account when assessing an applicant’s income. Where an applicant has total capital of more than £8,000 (including equity in their home) they will not be eligible for legal aid. Where they have capital of more than £3,000 but less than £8,000 they will be eligible for legal aid but required to pay a contribution of any capital over £3,000. Treating backdated payments of PIP as capital results in applicants exceeding the capital thresholds for legal aid.
- PIP is a social security benefit paid on a weekly basis whose essential purpose is to provide help in meeting the additional costs which disabled persons incur by reason of their disability. Further information available here: Personal Independence Payment (PIP): What PIP is for – GOV.UK (www.gov.uk)
- PIP is paid for two separate elements: the “daily living component” and the “mobility component.” In each case there are two possible rates of payments – “standard” or “enhanced” – depending on the level of disability the person is able to establish. A person may, depending on their circumstances, be able to establish entitlement to only one element, at either rate, or some combination of both elements, each of which may then be paid at either rate.
- The DWP’s published statistics indicate that the median “clearance time” (from registration for PIP to a decision being made) for new PIP claims was 18 weeks as at July 2022. When PIP is awarded, a backdated sum will be paid covering the period from date of registration to the decision being made. Where PIP is not awarded, there is a right to mandatory reconsideration, which can result in PIP being awarded upon review, resulting in even longer waiting times and a further or bigger backdated lump sum payment of PIP. Therefore, it will be usual for all new applicants for PIP to receive a backdated lump sum of PIP payment, which in many cases will result in them exceeding legal aid capital thresholds.
For further information please contact Clare Jennings on 020 8445 9268 or by email at firstname.lastname@example.org