Rights of Women, R (on the application of) v The Lord Chancellor and Secretary of State for Justice

A power to prescribe evidence for determining eligibility for civil legal aid may include conditions concerning the age of that evidence. The power must, however, be exercised rationally to promote rather than frustrate the purposes of the Legal Aid, Sentencing and Punishment of Offenders Act 2012.

Those purposes include saving public money while making legal aid available to the great majority within the categories identified by Parliament as having the greatest need. A rigid requirement that evidence of domestic violence be no more than 24 months old, without a safety valve, was arbitrary and excluded many intended beneficiaries. Evidential requirements which made no effective provision for financial abuse likewise frustrated the statutory purpose. Parliament’s rejection of proposed amendments did not insulate the resulting subordinate legislation from judicial review.

Rights of Women, a charity specialising in women’s rights and gender-based violence, sought judicial review of regulation 33 of the Civil Legal Aid (Procedure) Regulations 2012. Regulation 33 prescribed the evidence required from victims of domestic violence applying for legal aid in family matters. Most prescribed evidence had to relate to the preceding 24 months, and the list did not effectively accommodate financial abuse.

The Divisional Court dismissed the claim in [2015] EWHC 35 (Admin). It held that regulation 33 fell within the power conferred by section 12 of the Legal Aid, Sentencing and Punishment of Offenders Act 2012 and did not frustrate the Act’s purposes. The central issues on appeal were whether regulation 33 exceeded that power or, alternatively, frustrated the statutory purpose under the Padfield principle.

1. Appeal allowed. Regulation 33 was within the language of the regulation-making power in section 12 of the Legal Aid, Sentencing and Punishment of Offenders Act 2012. Section 12 was not confined to matters characterised as purely procedural. Its express power to prescribe conditions which an applicant must satisfy permitted requirements for specified evidence, including a requirement that a report be dated within the preceding 24 months.

2. The relevant statutory purpose was broader than reducing expenditure and encouraging alternative dispute resolution. Part 1 of Schedule 1 identified categories of greatest need. The Act was intended to make civil legal services available to at least the great majority of persons within the most deserving categories, including victims of domestic violence. Requirements imposed under section 12 therefore had to be rationally connected with that purpose.

3. The Padfield inquiry was distinct from conventional Wednesbury review. A ministerial discretion must promote the policy and objects of its enabling Act and must not be exercised so as to frustrate them. Determining whether a requirement frustrates statutory purpose necessarily involves considering whether it is rationally connected with that purpose.

4. The 24-month rule lacked that connection. Domestic abuse may remain relevant after two years, particularly where separation, imprisonment, protective orders, delayed family proceedings or psychological abuse explain the passage of time. The rule excluded many intended beneficiaries and provided no safety valve through which an applicant could explain why recent prescribed evidence was unavailable. Exceptional case funding under section 10 was not an adequate answer.

5. The prescribed evidence also failed to cater for victims of financial abuse, although financial abuse fell within the statutory definition of domestic violence. The suggestion that such victims could instead prove psychological abuse was inadequate.

6. The Commons’ rejection of amendments intended to relax evidential time limits did not prevent the court from deciding whether subordinate legislation frustrated the purpose discerned from the enacted statute. Regulation 33 was declared invalid insofar as it imposed the 24-month requirement and failed to cater for financial abuse. Kitchin LJ and Macur LJ agreed with Longmore LJ.

• Court of Appeal (Civil Division): In [2016] EWCA Civ 91, unanimously allowed the appeal and declared regulation 33 invalid insofar as it imposed the 24-month evidential limit and failed to cater for financial abuse.
• High Court, Divisional Court: In [2015] EWHC 35 (Admin), dismissed the judicial review claim, holding that regulation 33 was authorised by section 12 of the Legal Aid, Sentencing and Punishment of Offenders Act 2012 and did not frustrate the Act’s purposes.