Smoke and mirrors? Regulation 12 and access to legal aid for victims of domestic abuse

Since the Legal Aid, Sentencing and Punishment of Offenders Act 2012 was introduced the number of unrepresented victims of domestic abuse in applications for protective injunctions, has increased. Studies consistently point to the strict legal aid means criteria as the reason behind this, however, there is a paucity of literature challenging why this is the case, given that provision is made within Regulation 12 of the Civil Legal Aid (Financial Resources and Payment for Services) Regulations 2013 for the financial eligibility thresholds to be waived in applications for a protective order. Drawing on a survey of 24 legal professionals and information provided by the Legal Aid Agency (LAA) following Freedom of Information Act requests, this article seeks to address this gap in the literature and examine the value of Regulation 12. Findings indicate that the limited use of Regulation 12 can be attributed to a weak understanding amongst legal aid practitioners about its existence, concerns amongst practitioners about not being remunerated for work completed on files and an absence of clear guidance for the Director as to the use of the discretion. The findings are timely as the means test being considered by the ongoing Legal Aid Review.