Understanding Legal Aid Access
It is important to understand that access to legal aid is heavily regulated and that the government have set out a strict criteria not only on who is eligible but also what each pathway of access looks like. There are no exceptions to this criteria and no eligibility if anyone fails at any stage of the criteria check.
All requirements for access to legal aid are set out in Schedule 1 of LASPO 2012.
There are two different pathways for Public Funding:
- Areas that require evidence of Domestic abuse or Domestic Violence as well as Means and Merits Testing
- And areas that don’t require proof of Domestic abuse but may have other testing requirements depending on the case
Proof of Domestic Abuse
What does it mean to provide “proof of domestic abuse”?
Evidence required is prescribed as is the form of such evidence – nothing else will do – wording needs to be precisely as per the model letters.
The types of evidence letters are:
1. Evidence that B has been arrested for a relevant domestic violence offence
2. A relevant police caution for a domestic violence offence
3. Evidence of relevant criminal proceedings for a domestic violence offence which have not concluded
4. A relevant conviction for a domestic violence offence
5. A domestic violence protection notice issued under section 24 of the Crime and Security 2010 against B
6. Police bail for a domestic violence offence
7. A relevant protective injunction
8. A copy of a finding of fact, made in proceedings in the United Kingdom, that there has been domestic violence by B9.
9. An expert report produced as evidence in proceedings in the United Kingdom for the benefit of a court or tribunal confirming that a person with whom B
is or was in a family relationship, was assessed as being, or at risk of being, a victim of domestic violence by B
10. Letter or report from an Appropriate Health Professional
11. Multi-Agency risk assessment conference – A letter from any person who is a member of a multi- agency risk assessment conference (or other suitable local safeguarding forum)
12. Letter from an independent domestic violence advisor
13. Letter from an independent sexual violence advisor
14. Letter from a local authority or housing association
15. Letter from organisation providing domestic violence support services
16. Domestic violence support organisation refusal of admission to a refuge
17. Evidence of Financial Abuse
You can find the scripted letters that the government have provided for these evidence letters on their website. Remember this is a prescribed process, no other format will be accepted.
Means Test
On average where most people fail to access Legal Aid it will be from the Means Test criteria. This criteria has two parts – capital and income test. Both areas have to pass or access to Legal Aid will be declined.
Eligibility calculator http://civil-eligibility-calculator.justice.gov.uk/
| Income Limits | Capital Limits | Passporting Benefits |
|---|---|---|
Gross income cannot exceed:
*Note: A higher gross income cap applies to families with more than 4 child dependants. Add £222 to the base gross income cap shown above for the 5th and each subsequent child dependant. |
Disposable capital not to exceed:
|
Clients properly in receipt, directly or indirectly, of:
are passported through the gross income and disposable income test but capital must be assessed in all cases. Meaning that even if they pass the income limits through passporting they could still fail on Capital limits |
Merits Test
Cases that require Merits testing have to pass the following three criteria.
| Prospects of success | Reasonable private paying client test | Proportionality test |
| Case has more than 50% chance of succeeding or that there is some other public benefit to you bringing / defending legal action | Potential benefit to be gained from providing legal aid justifies the likely cost, such that a reasonable private paying individual would be prepared to start or continue the proceedings having regard to all circumstances of the case. | The likely benefit of the proceedings to the individual and others satisfies the likely costs considering all circumstances of the case. |
Cases that require evidence of Domestic abuse or Domestic Violence as well as Means and Merits Testing
Again we must be clear, in order to qualify for legal aid for any of the following case needs you must first prove domestic abuse through the scripted pathways as highlighted above AND pass both Means and Merit Tests
Cases that DO NOT require evidence of Domestic abuse or Domestic Violence but MUST PASS both Means and Merits Testing
- Non – Molestation Orders and Occupation Orders
- Forced Marriage Protection Orders
- Female Genital Mutilation Protection Orders
- Contact with child in care
- Discharge / Variation of CO, SO
- Appeals in public law cases
- Placement Orders and Adoption Orders
- Wardship
- Unlawful removal of children
- International maintenance
Where there is a requirement to prove Domestic Abuse and this is not proven no access to Legal Aid can be made available.
If there is proof of Domestic Abuse but any part of the Merit of Means test doesn’t pass there is no access to Legal Aid.
