head in hands

Domestic violence re-visited

head in handsI am a solicitor in private practice and am becomingly increasingly concerned as to how the Legal Aid Agency (LAA) and Ministry of Justice (MOJ) are interpreting the Domestic Violence gateway regulations and would be keen to receive details of any problems advisers have had. It seems to be the case that the rules in themselves are just so complex that many advisers cannot spend the unpaid time needed to ascertain if clients qualify.

My firm finds that the majority of our eligible clients for private family cases are from refuges as the refuge letter route is so straightforward but when you need a medical letter this is becoming horrendously bureaucratic. Most GPs seem to find it impossible to write the letter in the format required and most clients cannot afford to pay any medical report fees anyway.

The main problems I find firms are encountering, from my own knowledge and through Legal Aid Practitioners Group, of which I am secretary, are the two year limit, change of level of service and medical reports.

The Act

I always believe it is worth reminding ourselves what the Act actually says:

LASPO 2012 Schedule
Victims of domestic violence and family matters

12(1) Civil legal services provided to an adult (“A”) in relation to a matter arising out of a family relationship between A and another individual (“B”) where—

(a) there has been, or is a risk of, domestic violence between A and B, and

(b) A was, or is at risk of being, the victim of that domestic violence.

And despite the Legal Aid website referring only to abuse being perpetrated by a partner: “You can get legal aid to help with the divorce or things such as child contact or how to share money or property, but you will need to give your solicitor some evidence that you have been a victim of domestic violence by your partner.”

The law actually states:

Definitions

(7) For the purposes of this paragraph—

(a) there is a family relationship between two people if they are associated with each other, and

(b) “associated” has the same meaning as in Part 4 of the Family Law Act 1996 (see section 62 of that Act).

So this can include parents, children, anyway defined in section 62.

The Regulations and Guidance

Just a reminder all the regulations are here. Regulations 33 and 34 are the pertinent ones. These were revised in April 2014 (here).

There is guidance here (PDF).

 And template letters are herehere and here.

Medical Reports

One main problem area seems to be medical reports. The original regulation said it needed:

33 (2) (h) a letter or report from a health professional confirming that the professional—

(i) has examined A within the twenty four month period immediately preceding the date of the application for civil legal services;

(ii) was satisfied following that examination that A had injuries or a condition consistent with those of a victim of domestic violence; and

(iii) has no reason to believe that A’s injures or condition were not caused by domestic violence;

This has now been amended in April 2014 to state:

in sub-paragraph (h)—

(i) after “a health professional” insert “who has access to the medical records of A”;

(ii) for “the professional” substitute “that professional, or another health professional”;

(iii) in paragraph (i) after “examined A” insert “in person”;

(iv) at the end of paragraph (i) insert “and”;

(v) at the end of paragraph (ii) omit “and”; and

(vi) omit paragraph (iii);

The LAA guidance says:

Regulation 33(2)(h) “ a letter or report from a health professional who has access to the medical records of A confirming that a health professional —

(i) has examined A in person within the twenty four month period immediately preceding the date of the application for civil legal services; and

(ii) was satisfied following that examination that A had injuries or a condition consistent with those of a victim of domestic violence;

2.45 The Regulation states that for these purposes a ‘health professional’ means a registered:

(a) medical practitioner who holds a license to practise;

(b) a nurse;

(c) midwife; or

(d) A practitioner psychologist who holds a license to practice

2.46 A medical practitioner will include all doctors, for example, a General Practitioner (GP), a doctor working in the Accident and Emergency department of a hospital or a psychiatrist. Dentists and paramedics are not included in this definition for the purposes of the evidence.

2.47 They must have been registered when they undertook the examination of your client.

You can confirm whether a medical practitioner is registered with the General Medical Council on their website here: http://www.gmc-uk.org/doctors/register/LRMP.asp

A nurse or midwife must be registered with the Nursing and Mid-Wifery Council: http://www.nmc-uk.org/Search-the-register/

A practitioner psychologist must be registered with the Health and Care Professions Council (HCPC). You can confirm whether a psychologist is registered with HCPC on their website here: http://www.hpc-uk.org/check/

The Legal Aid Agency may take steps to verify that the letter is from a registered health professional.

2.48 The letter must confirm that a health professional has examined the client in person within the twenty four month period immediately preceding the date of the application and that the health professional was satisfied following that examination that the client had injuries or a condition consistent with those of a victim of domestic violence.

2.49 There are two parts to this evidence and both parts must be met in order for the evidence to be satisfied. It is not necessary for the specific form of words to be used but the meaning must be clear.

2.50 The evidence does not need to name the perpetrator.

 There is therefore more scope for clients to qualify through this route.

Two year rule

The other issue is how the LAA are interpreting the two year rule for evidence. It is clear from the Regulations (referred to above) that the abuse must have occurred within the preceding two years:

I will not copy the whole regulation but it is clear the abuse or court determination or report must have been within the preceding two years:

(2) For the purpose of paragraph (1), the evidence of domestic violence or risk of domestic violence must be provided in one or more of the following forms—

(a) a relevant unspent conviction for a domestic violence offence;

(b) a relevant police caution for a domestic violence offence given within the twenty four month period immediately preceding the date of the application for civil legal services;

(c) evidence of relevant criminal proceedings for a domestic violence offence which have not concluded;

(d) a relevant protective injunction which is in force or which was granted within the twenty four month period immediately preceding the date of the application for civil legal services;

 This can include abuse that is more than two years ago if reported to, say a health professional, within the preceding two years.

We at LAPG were rather perturbed-when we were advised that in Parliament the Legal Aid Minister said this:

Sadiq Khan: Whether the prescribed time period of evidence relating to legal aid funding of domestic violence cases refers to the time of the first application or the evidence of domestic violence. [219186]

Shailesh Vara: The Civil Legal Aid (Procedure) Regulations set out that once a legal aid certificate is granted, subsequent applications for either a new form of civil legal services or for new proceedings to be added to a certificate, and for which a new determination is being sought, will require further evidence to be provided.

This Government is absolutely clear that victims of domestic violence should get legal aid where it is needed to help break free from the abusive relationship. Since the reforms were introduced last year thousands of people have successfully applied for legal aid where domestic violence is involved.

The 24 month time limit for evidence does not exclude victims where the abuse occurred over two years ago. The time limit relates to the date the evidence was obtained, not the date of the abuse itself. Some forms of evidence can be obtained several months or even years after the abuse has been experienced.

I appreciate the evidence can relate to abuse that is more than two years old such as medical reports, but that is not true in many situations, such as undertakings or findings of fact, these must be within the preceding two years.  The answer is too simplistic and takes no account of the horrendous complexity of the regulations.

Change of level of funding

One recent issue is that the LAA have refused to extend legal aid to Legal Representation from Family Help (Higher) if the abuse is more than two years old at the time the application to extend is made.  We know they made this clear in the advice that this would apply to a chance from level of service such as legal help to certificate:

Some of the prescribed forms of evidence must relate to incidents within the twenty four month period immediately preceding the date of the application for civil legal services. This time period applies individually each time a new application for a determination is made. For example, a client has a piece of evidence dated 20 May 2011. They see you on 8 April 2013 and you provide them with advice under Legal Help and then Family Help (Lower). You subsequently make an application for a Family Help (Higher) under a legal aid certificate on 1 June 2013 (Licensed Work). The evidence will no longer be valid as it is outside the prescribed time period for the grant of Family Help (Higher) and a further piece of evidence will need to be obtained before submitting the application for this form of service.

The MOJ have referred to Regulation 33 and 37, see above for regulation 33 (here). It is true this talks about a determination about a legal aid certificate and I accept I can be argued as being a new level of service so the abuse must be within two years.

However, when the level of the certificate changes there is an amendment not a new determination, so I think the MOJ are wrong:

(4) The Director may amend a certificate for—

(a) family help (higher) to record a subsequent determination that the individual qualifies for legal representation in family proceedings which arose out of the dispute which was the subject of the initial determination in relation to family help (higher); or

I know Resolution and the Law Society are looking into this but be very aware that if you are applying for final hearing cover they may pull the certificate on the basis the abuse was older than two years by then, I am aware this has happened.  So the client could be forced to face an opponent who it has been assessed caused domestic abuse.

Please let me have any details of where this has happened and the steps you have had to take to resolve it, it may need an exceptional funding application, not easy when you may only have one week to a final hearing.

Other useful information

Also Rights of Women have launched a Judicial Review about the gateway and the fact that it is so unfair and bureaucratic (here). There is also really useful information (here) and it is worth following them on Twitter and/or subscribing to email updates from them for really up to the minute information.

Resolution also have advice pages hereThere is an interesting article here.

My email address is whewstone@gmx.com.

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