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Civil legal aid: scope and eligibility

This content applies to England & Wales

Criteria to be satisfied for the granting of civil legal aid.

The main tests

Whether clients can receive civil legal aid depends primarily on:

  • the type of legal problem they have (ie scope test)
  • the disposable income and capital they have (ie financial eligibility test)
  • whether it is reasonable for an individual to be provided with public funding having regard to any alternative source of funding and whether the costs are justified (ie standard merits test).

In addition, each form of civil legal service will have specific merits tests that clients have to meet (eg prospect of success, public interest, reasonable private paying individual, proportionality, likely damages, and likely costs as appropriate to each form of legal service). For most types of Legal Representation, there is a standard test that the case must not be suitable for a conditional fee agreement (see under the heading 'Help for ineligible clients' below for a definition).

The types of legal problems and the areas of law covered are limited. However, in exceptional cases, legal aid may be available for problems outside its scope where failure to provide it would breach an individual's human rights or her/his enforceable European Union (EU) rights.[1]

Housing and debt problems covered by legal aid

Under the 2013 Housing & Debt Standard Civil Contract, civil legal aid will cover only the following legal problems:

Housing

  • homelessness
  • allocations (if homeless/threatened with homelessness)
  • community care
  • county court duty schemes
  • accommodation provision to asylum seekers
  • repossession of a rented home (ie not owner-occupied properties)
  • lawful and unlawful eviction from the home (but squatters are excluded)
  • injunctions relating to harassment in the home
  • antisocial behaviour cases in the county court
  • disrepair, but only in relation to the removal or reduction of a serious risk of harm to the health or safety of the occupiers (claim for damages are out of scope, save as a counterclaim in possession proceedings)
  • judicial review

Housing issues relating to business tenancies or otherwise arising out of the carrying on of an individual's business are usually excluded. However, cases where possession of an individual's home is in issue are not excluded, even if it also concerns business premises. For example, defence of possession proceedings relating to a shop can be funded where the tenancy includes the individual's home.

Debt

  • orders for sale of an individual's home
  • mortgage repossession of an individual's home
  • involuntary bankruptcy where an individual's home forms part of the estate.

Other problems relating to debt or housing are out of scope, including:

  • disrepair cases where there is no serious risk of harm to the health or safety of the occupiers
  • damages claims resulting from disrepair
  • housing benefit issues.

Debt problems within scope (as detailed above) are covered by Gateway work. For more information about gateway work see the page on Gateway work.

Other areas

Problems with welfare benefits (including housing benefit and/or universal credit) will only be covered by way of Legal Help or Legal Representation in appeals to Upper Tribunal or higher courts.

Judicial review proceedings against public authorities are within scope but specific merits criteria apply as set out in Part 6 of the Civil Legal Aid (Merits Criteria) Regulations 2013 (SI 2013/104). European Union (EU) cross border cases are also covered.

A legal aid provider with a contract in any category of law can advise in relation to discrimination issues (ie issues arising out of a breach of the Equality Act 2010) falling within the category in which s/he holds a contract. Otherwise, legal aid on discrimination issues is available as Gateway work.

Financial eligibility

In order to qualify for legal aid an individual's capital and income must not exceed certain amounts. Both the client’s and her/his partner’s resources are taken into consideration, even if one partner is in prison or living elsewhere, unless a relationship has completely broken down.

A client with more than £8000 in capital is not financially eligible for legal aid, and there is no need to look into her/his monthly income, even if s/he is in receipt of a passporting benefit (see below). A client who passes the capital test and is in receipt of a passporting benefit is eligible and does not need further assessment.

Otherwise, a client who passes the capital test must have her/his monthly income assessed as follows:

  • gross income test: all income for the last calendar month must be added up. It is critical to do this correctly. Some income is not paid monthly, for example child benefit and tax credits are paid four weekly. To calculate the calendar monthly income, it is necessary to multiply by 52 and divide by 12 if the income is weekly, or multiply by 13 and divide by 12 if the income is four-weekly
  • disposable income test: the final hurdle of the assessment is to establish that the client's monthly income after deducting basic living expenses and allowances for a partner and children is not over £733 per calendar month.

The National Homelessness Advice Service (NHAS) has developed a flowchart to assist advisers when checking if clients satisfy the financial eligibility test.[2]

Read more from the Legal Aid Agency about eligibility.

Passporting benefits

Individuals in receipt of the following benefits automatically satisfy the gross and disposable income limits, but their capital still need to be assessed:

  • income support (IS)
  • income-based job seeker's allowance (JSA)
  • income-related employment and support allowance (ESA)
  • guarantee credit element of Pension Credit (GC)
  • universal credit (UC).

Individuals in receipt of asylum support from the UK Border Agency (ie NASS support) automatically satisfy both the income and capital tests when applying for Legal Help and/or Help at Court in asylum and immigration.

The Legal Aid Agency (LAA) may waive the financial eligibility criteria at its discretion in cases relating to domestic violence and forced marriage.[3] Whether the LAA considers it equitable to do so will depend on all the circumstances of a particular case. In a case heard in the High Court concerning a vulnerable adult who was at risk of domestic violence,[4] the judge invited the LAA to reconsider its application of the criteria as a matter of urgency where the claimant had received a lump sum back-payment of state benefit that brought her above the capital threshold and excluded her from legal aid. If her benefits had been paid weekly she would have been eligible.

Online eligibility calculators

There are several online interactive calculators where financial eligibility can be checked:

Proof of means

The LAA does not usually allow a solicitor/specialist legal adviser to do any work on a client's case until s/he has seen proofs of means. These may include (nb the lists below are  not exhaustive):

  • for Legal Help and Help at Court - last month’s payslip(s); recent letter from DWP/bank statement specifying benefits or other income such as pensions, student grant/loan, maintenance, dividends etc; most recent accounts if self-employed; letter from HMRC/latest bank statements showing child benefit and/or tax credits
  • for Legal Representation - last three payslips; recent letter from DWP/bank statement specifying benefits or other income (as above); if self-employed most recent accounts last three months’ bank statements for every account, even if not in current use; letter from Council about housing benefit; details of other savings/investments; rent or mortgage statement.

Residence test

The Supreme Court held that it would be unlawful (ie ultra vires) for the government to introduce a residence test for civil legal aid services in order to restrict eligibility only to people lawfully resident in the UK, Crown Dependencies or British Overseas Territories at the time of their application for civil legal aid, and who have resided there lawfully for a continuous period of at least 12 months.[5]

The exclusion of a specific group of people from the right to receive civil legal services by reference to their residence, as proposed in the draft Legal Aid, Sentencing and Punishment of Offenders Act (Amendment of Schedule 1) Order 2014, is not within the scope of the power to bring forward delegated legislation granted to the Lord Chancellor by Parliament  (through section 9(2)(b) of the Legal Aid, Sentencing and Punishment of Offenders Act 2012).

Help for ineligible clients

If the client does not qualify for legal aid, s/he may be able to get help through one of the following options:

Information on legal rights

People with a legal problem can visit Gov.uk for information about their rights and the law.

Low cost advice

Some lawyers provide cheaper legal advice and assistance to people who are not eligible for legal aid but cannot afford full legal fees. Not-for-profit organisations such Citizens Advice and Law Centres may provide free legal help.

More information is available from the Law Society.

Free initial interview

Many organisations offer a short period of initial free legal advice.

Fixed-fee interview

Some solicitors offer an interview (generally of 30 minutes) for a fixed fee.

Conditional fee agreement (CFA)

CFAs, also known as no-win no-fee agreement, are agreements under which lawyers agree not to charge a client unless they win the case in the expectation that they will recover the costs from the opponent.

Legal expenses insurance

Legal expenses insurance, also known as legal protection insurance, covers policy holders against the potential costs of legal action brought against them. There are two main forms of legal expenses insurance: 'before-the-event insurance' and 'after-the-event insurance'.

Trade unions and motoring organisations

Trade unions and motoring organisations often offer free legal advice and assistance to their members.

Pro bono work

Some lawyers offer some services free of charge. This is called 'pro bono'. Further information is available from the following:

[1] s.10 Legal Aid, Sentencing and Punishment of Offenders Act 2012.

[2] The flowchart was originally published in Housing Matters 114, NHAS, October 2016.

[3] Reg 12 Civil Legal Aid (Financial Resources and Payment for Services) Regulations 2013 SI 2013/480.

[4] Re FD (Inherent Jurisdiction: Power of Arrest) [2016] EWHC 2358 (Fam).

[5] R (on the application of The Public Law Project) v Lord Chancellor [2016] UKSC 39.

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