Legal Aid: mortgage cap removal could help domestic abuse victims

Tue 9th Feb 2021

Shelley Workman, Chartered Legal Executive in Coodes Solicitors’ Family team, welcomes the removal of the mortgage cap in Legal Aid means testing and outlines how it could benefit victims of domestic abuse.

The mortgage cap has been removed from the eligibility criteria for civil Legal Aid. This recent change in legislation means more people could access financial support for their legal costs. In particular, the change in means testing could have a significant impact on those who are seeking legal advice to escape domestic abuse.

What is Legal Aid?

Legal Aid helps those who cannot afford to pay for legal support. The provision covers some of the costs of expert advice and representation in court or tribunal. However, the individual must prove that they cannot afford to pay the legal costs themselves. People can receive Legal Aid for a range of cases, including:

  • Domestic abuse
  • Risk of losing your home
  • Being accused of a crime
  • Discrimination
  • Family mediation
  • A case under the Human Rights Act

At Coodes, we have a Legal Aid contract for the whole of Cornwall and the Holsworthy area in North Devon.

What are the changes to Legal Aid?

The removal of the £100,000 mortgage cap means more people will be eligible to receive Legal Aid.

Previously, a mortgage allowance was used to determine an individual’s eligibility to receive help with legal costs. Any mortgage debt over £100,000 would not be allocated as a debt on the property. Therefore the property value over that £100,000 – even though not an available asset – would be assessed as one.

For example, if an individual had a mortgage of £200,000, only half would be deducted from the property’s value and the rest would be classed as capital. Any asset valued between £3,000 and £9,000 could leave the individual ineligible for funding or having to pay a capital or monthly contribution to their funding which they might not be able to afford. The new rules mean all mortgage debt will be deducted so more individuals will pass the financial eligibility criteria.

Why has the mortgage cap been removed?

The cap was previously based on a consultation, which was carried out in 1994. Since then, property values, living expenses and the amount of borrowing has significantly increased. Campaigners argue this change is long overdue as there have been many cases in which families living below the poverty line have been unable to access Legal Aid.

There have been cases in which victims of domestic violence have been refused Legal Aid due to the amount of capital in their homes. Some have had to resort to selling their house or taking out a bank loan in order to pay for legal help. The £100,000 mortgage cap has also forced some victims to face their abuser in court alone, without legal representation.

Many victims also suffer financial abuse from their partner, meaning they have no access to bank accounts or mortgage documents. In the past, this has sometimes meant they have been unable to pass the eligibility criteria for Legal Aid.

I welcome this change in legislation. The previous rules were unfair to homeowners on low incomes and those people with larger mortgages. More individuals who cannot afford the legal help they need will now be able to receive representation without getting into debt.

How will the mortgage cap removal benefit victims of domestic abuse?

As a family lawyer and domestic abuse specialist, I believe the removal of the mortgage cap has the potential to help many people who need to escape harmful relationships. Campaigners have already highlighted the fact that the change could have the biggest impact in rural communities, which include a high proportion of home owners on low incomes. Here in the South West, the change is very welcome.

Legal Aid is available to victims of domestic abuse if they can prove they are at risk of harm from a partner or ex-partner, or that there is risk to a child. The Government website details what counts as evidence and how you can obtain this.

This change in legislation will allow more victims of domestic abuse, who simply cannot afford to do so without facing debt, to access legal advice and representation. Many campaigners and domestic abuse charities have celebrated the crucial change as a step forward in supporting all victims who need access to safety and legal support.

Support from domestic abuse charities

A number of dedicated charities offer support and advice to anyone who is experiencing domestic abuse. We work with many of these organisations and often recommend them to our clients. The following local agencies are continuing to offer support during the pandemic:

If you are affected by any of these issues and need legal advice, please contact the Family team:

Tue 9th Feb 2021

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