WA, R (on the application of) v Director of Legal Aid Casework & Anor

A dependent child may be a member of more than one household for the purposes of a legal aid means assessment. The question depends on the ordinary meaning of household and the facts and degree of the child’s quantitative and qualitative ties to each home. The Civil Legal Aid (Financial Resources and Payment for Services) Regulations 2013 do not require a choice between separated parents, nor do they import the single-household concept used for income support purposes. Guidance stating that a dependant’s allowance cannot be granted to both a person and their partner is therefore unlawful. Decision-makers must also consider material circumstances explaining apparent living or benefit arrangements where those circumstances may bear on household membership.

WA sought judicial review of a Legal Aid Agency decision refusing legal aid for family proceedings concerning the custody and living arrangements of her youngest son, G. The decision treated G as outside WA’s household because he lived mainly with his father and the father received child benefit. It therefore refused the dependant’s allowance under regulation 25(2)(b) of the Civil Legal Aid (Financial Resources and Payment for Services) Regulations 2013 and capped the housing-cost deduction under regulation 28(7).

WA challenged the construction of the Regulations and the related guidance. She also alleged failure to consider relevant circumstances and argued that refusal of legal aid infringed Articles 6 and 8 of the ECHR.

1. Ground 1 allowed. The ordinary and natural meaning of household permits a dependent child to belong simultaneously to the separate households of both parents. The question is fact-sensitive and depends on whether each home is sufficiently the child’s home, quantitatively and qualitatively, that the child would be regarded as one of its occupants. There is no presumption that shared living arrangements produce that result.
2. The single-household approach in the Income Support (General) Regulations 1987 serves the distinct purpose of directing a single set of welfare payments. The Civil Legal Aid (Financial Resources and Payment for Services) Regulations 2013 neither cross-refer to that approach nor adopt it. Regulation 25(2)(b) instead requires a standardised deduction for a dependent child who is a member of the applicant’s household.
3. Regulation 25(3) permits reduction of that deduction by reference to the dependent’s own income or other financial resources. It does not permit reduction by reference to the extent to which another parent provides residence or financial support.
4. Paragraph 7 of section 5.6 of the Guidance unlawfully stated that the dependant’s allowance could not be granted to both an individual and their partner. The Legal Aid Agency’s decision was based on that legal error and was quashed. The paragraph was also quashed.
5. Ground 2 would alternatively have succeeded. If a choice between households had been required, the claimant’s allegations concerning coercion, custody and the temporary nature of the existing arrangements were potentially material. Treating them as irrelevant or giving them no weight would have been a failure to consider a relevant factor.
6. Ground 3 did not succeed. The claimant was in fact represented in the family proceedings, and the court was not persuaded that the refusal infringed her ECHR rights on the facts.