ATLEU challenge results in survivor no longer having to choose between accessing recovery or justice

A case brought by ATLEU’s client, JW successfully challenged the adverse impact of the financial threshold for legal aid, which would have forced them to choose between their recovery and access to justice. In this case, the small increase in JW’s financial support recovery payments pushed them over a financial threshold for legal aid, which required them to pay a contribution towards their legal aid. We welcome the Legal Aid Agency’s decision to exercise discretion for our client so that they no longer face this choice, and their subsequent announcement that these payments will no longer be included in the means test from this year.

Background
In July 2023 the Home Office made a small increase to the ‘Essential Living Rate’, the rate of subsistence given to survivors of trafficking and modern slavery to cover their basic needs, and the ‘Recovery Rate’, the amount survivors are paid to meet their recovery needs under the Modern Slavery Victim Care Contract (MSVCC). The Essential Living Rate was increased again in January 2024. In total the increases amounted to an additional £4.51 per week. 

Instead of being able to use this desperately needed money to cover their daily essentials, survivors living in self-catered accommodation have been forced to choose between meeting their needs and access to justice. 

Even a tiny increase to the support rates has meant that in order to access this vital advice, certain survivors are required to pay a contribution towards the cost of running their legal case if they need representation in court. This means money that the Home Office recognises is essential for a survivor’s basic survival and recovery needs is being requested by the Legal Aid Agency (LAA). The impact is an impossible choice and one survivors shouldn’t be forced to make. 

This was the situation faced by ATLEU’s client JW. 

Our case
In February 2024 we applied for legal aid for our client who is currently sofa surfing and in receipt of payments under the MSVCC (both the Essential Living Rate and the Recovery Rate). In our statement of case we requested the LAA exercise discretion and disregard the Recovery Rate, as this was intended for a specific purpose. This request was refused and JW was required to pay a contribution of £5.89 per month. We wrote to the Lord Chancellor and Director of Legal Aid Casework (“DLAC”) challenging this decision.

Response
The DLAC confirmed that she would exercise discretion and would not withdraw the determination if no financial contribution was made by our client. She also confirmed that no steps would be taken to recover payments from the client at a later date. Under the current regulations, the DLAC does not have discretion to waive the contribution unless the case satisfies the wider public interest test and there are other claimants or potential claimants that might benefit from the proceedings. 

As a workaround, the LAA agreed that no contribution would be paid and our client would not be required to sign the offer of legal aid. The certificate was issued outside of the LAA’s electronic system, meaning all amendments to scope/costs would have to be completed via the paper application process.

Changes to the Means Test 
Shortly following the outcome of this case, on 14 March 2024, the LAA issued a press release confirming that accelerated measures were being undertaken to improve access to justice, including bringing into force this year a mandatory disregard for payments made under the Modern Slavery Victim Care Contract (MSVCC).

This is welcome news. ATLEU has been alarmed at the delays in implementing changes to the Legal Aid Means Test in response to the Legal Aid Means Test Review. This Review was originally launched in 2019, with a further consultation in 2022, and planned reforms announced in May 2023. Yet, implementation has been hit by two announced delays first to 2025 and then recently that some reforms will be delayed until 2026. 

ATLEU continues to call for non-means tested legal aid for all survivors of trafficking and modern slavery. While we welcome the actions taken by the LAA on this issue, an end to means testing for survivors of trafficking and modern slavery is the most effective way to ensure that they can access the legally aided advice and representation that they crucially need.

We hope that details of our case will help other providers representing survivors to request the LAA exercise discretion in the meantime. 

This case was run by Hannah Khalifah at ATLEU. We thank Donnchadh Greene, Doughty Street Chambers, for his advice and assistance. 

If you have would like any further information regarding the legal challenge, please do not hesitate to contact us at advice@atleu.org.uk