When Should The State Pay For Representation?

There has been a considerable stirring of interest recently regarding a reported case which has suggested that in certain circumstances the state should pay for a person to be legally represented even though they did not qualify for Legal Aid.

The sort of cases that are being considered in this and previous cases is when allegations for example are made of domestic violence or sexual abuse and the unrepresented alleged perpetrator would otherwise be free to cross examine the victim.

It is easy to see how this could be extremely traumatic and emotionally damaging for a genuine victim especially if we are talking about a child.

These type of cases have attracted attention where the alleged perpetrator qualifies on purely financial grounds for legal aid but does not come within the scope of eligibility for representation because of the Government changes to the Legal Aid system in April 2013.

There is a system which enables a person to apply for a certificate on the basis of ‘exceptional funding’ but the hurdle has been criticised as being extremely high and only a handful of exceptional funding cases (in single figures) are granted in a 12 month period.

What is unusual about this present case is that the unrepresented party does not qualify for legal aid on financial grounds. His disposal income assessed in accordance with Legal Aid agency regulations came to £960 whereas the cut off point for disposal income is £733.
The Court was very mindful of the fact that just because a person has a disposable income that is over the prescribed limit does not mean that they have funds easily available for representation in difficult cases and indeed no account is taken when a Legal Aid application is submitted of specific payments for utilities, council tax and phone bills and indeed other general living expenses.

While that may be true, it has always been true and those who were just over the limit for legal aid but still did not have substantial means where often in the worst of positions.
There is no question of the Court’s filling in the gap left by the removal of Legal Aid from so many family law cases and such payments we would expect would be limited to cases where the consequences of not doing so could be disastrous for the victim.

The Courts however may put themselves in a difficult position in attempting to do this where the person is not entitled to legal aid because of their disposable income. The Court has no parallel system in place nor does it have any statutory authority to create one, and either each situation would have to be considered on its own merits or some other cut off point perhaps higher than £733 nevertheless just as arbitrary, might emerge.