A disabled woman has secured permission from the High Court to challenge the Legal Aid Agency’s guidance on financial eligibility. The claimant decided to issue judicial review proceedings after nearly facing a costs dilemma in a case against the police because of the way the agency treated a backdated welfare benefit payment when assessing financial eligibility.
Solicitor Clare Jennings, head of public law at Gold Jennings, said her client is a disabled survivor of domestic abuse who sought legal aid to judicially review the police’s decision to take no further action in relation to harassment she reported by her former alleged abuser.
The LAA granted an emergency legal aid certificate but subsequently decided that she would have to pay a ‘sizeable’ contribution towards her legal costs because she had received a backdated personal independence payment prior to making her application.
Jennings said the decision was a consequence of the agency treating the backdated PIP payment as capital, rather than as income.
LAA guidance states that if a client receives certain benefits, they are ‘passported’ through the income means test, but capital must still be assessed. The limit for disposable capital is £8,000. The claimant argues that the backdated PIP payment should have been treated as income and disregarded from the financial assessment.
Jennings said the police fortunately conceded the JR soon after proceedings were issued.
'However, had the police not conceded, my client would have been left in an impossible situation. She could not continue without legal aid because the cost risk alone would be too great. She’d already spent much of the PIP money, and the remaining money she saved she kept to lease a mobility vehicle under the motability scheme (open to PIP recipients) once a vehicle became available. So, she would have had to choose between continuing her claim or getting her mobility vehicle.’
She added: ‘There will be people who will be refused legal aid altogether because the backdated sum, when treated as capital, would take them over the capital threshold for legal aid. I have experienced that in the past with another client, and I know of other firms whose clients have had that experience.’
A date for the hearing has yet to be set.
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