Exceptions to the exclusions
We talked about the “designated” matters which are excluded from the scope of civil legal services above. Within the designated matters there are some exemptions for which we can provide legal aid. These are:
Defamation: Section 28(9)(b)
If the applicant is granted legal aid for a matter other than defamation, legal aid will not be stopped if the other party counter-sues them and includes defamation in their claim.
There is also an exemption where the applicant is resident in another EU jurisdiction (except Denmark) and they are applying for legal aid under Council Directive 2003/8/EC (see è Part 4 for details).
Disputes concerning rights and interests over land: Section 28(9)(c) (i)-(iii)
The following types of disputes concerning rights and interest over land are within the scope of civil legal aid, as an exemption to the general exclusion:
Proceedings under the following legislation:
- Landlord and Tenant Acts 1967 to 1994 (in so far as they relate to residential property),
- the Residential Tenancies Act 2004
- the Married Women's Status Act 1957,
- the Family Home Protection Act 1976 ,
- the Family Law Act 1981 ,
- Disputes between married couples as to the title to or possession of any property;
- Disputes over a property:
- between engaged couples or cohabiting couples; or
- between formerly engaged couples or cohabiting couples, who were co-owners of the property concerned while they were engaged or cohabiting.
- Disputes over the applicant’s home, but only if the Board considers that one or more of the following apply:
- The applicant suffers from an infirmity of mind or body due to old age or to other circumstances, or
- may have been subjected to duress, undue influence or fraud in the matter,
and in either case that a refusal to grant legal aid would cause hardship to the applicant.
Representative applications: Section 28(9)(c)(iv)
in connection with the preparation of an assent, if the Board is satisfied that the assent relates to the applicant's home and where—
- (I) a grant of representation has been taken out on behalf of the applicant, or
- (II) the applicant had taken out a personal grant of representation,
and that a refusal to grant legal aid would cause hardship to the applicant;
Licencing: Section 28(9)(c)(v)
If the granting of the licence would cause hardship to the applicant.
Conveyancing: Section 28(9)(c)(vi)
If it was connected with a previous case for which legal aid or advice was granted. For example, in divorce and judicial separation proceedings, a judge may make an order requiring the family home to be transferred into the sole name of one of the parties. If (s)he makes such an order, we can act on behalf of the legally aided party for the purposes of that transaction.
Inquests: Section 28(9)(c) (vii)
If a request is made by a coroner on behalf of a family member of the deceased in certain inquests (see Part 4 for further details)