Criteria for receiving civil legal aid

Means tested civil legal aid is available for specific housing, debt and public law cases.

This content applies to England & Wales

The main tests

Civil legal aid covers legal services for eligible people who cannot pay for legal advice and representation at court. The different civil legal services can range from basic legal advice or letter writing to full representation through the court system.

Whether people can receive civil legal aid depends on:

  • the type of legal problem they have

  • their disposable income and capital

  • whether it is reasonable for them to be provided with public funding, having regard to alternative sources of funding and whether the costs are justified

Each form of civil legal service has specific merits tests that people have to meet, including that the case:

  • has a good prospect of success

  • is in the public interest

  • would be funded by a reasonable private paying individual

  • is proportionate

The likely damages, and likely costs as appropriate to each form of legal service will also be considered. 

For most types of legal representation, there is a standard test that the case must not be suitable for a conditional fee agreement.

The types of legal problems and the areas of law covered are limited. 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 their enforceable retained European Union (EU) rights.[1]

Housing and debt problems covered by legal aid

The Housing & Debt Standard Civil Contract 2013 means civil legal aid covers the following legal problems:

Housing

  • homelessness

  • allocations (if homeless/threatened with homelessness)

  • community care

  • County Court housing court duty schemes

  • accommodation provision to asylum seekers

  • possession of rented property

  • lawful and unlawful eviction from the home (excluding trespassers)

  • 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. 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

  • possession proceedings issued by a mortgage lender

  • bankruptcy by a creditor's petition where the defendant'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 Civil Legal Advice Gateway work.

Other areas

People with welfare benefits problems can get Legal Help or Legal Representation in appeals to Upper Tribunal or senior courts.

Judicial review proceedings against public authorities are in scope for legal aid but specific merits criteria apply.[2] 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 arising out of a breach of the Equality Act 2010 falling within the category in which the firm has a contract. Otherwise, legal aid on discrimination issues is available as Gateway work.

Capital limits

To qualify for legal aid, an individual's capital and income must not exceed certain financial limits. Both the applicant's and their partner’s resources are taken into consideration, even if one partner is in prison or living elsewhere, unless a relationship has completely broken down.

Capital limits

An individual with more than £8,000 in capital is not eligible for legal aid, even if they are in receipt of a passporting benefit. An individual who passes the capital test and is in receipt of a passporting benefit is eligible and does not need further assessment. Capital may include money in the bank, valuable items, or a financial interest in land including the individual's home.[3]

For legal aid applications before 28 January 2021, the capital disregard for the value of the individual's main home is up to:

  • £8,000 general capital disregard[4]

  • £100,000 subject matter of the dispute[5]

  • £100,000 of the value of the property subject to a mortgage[6]

This means individuals with a property worth more than £208,000 are not eligible for legal aid for applications before this date.

Applications made on or after 28 January 2021 are subject to a complete mortgage disregard.[7] Only the equity must be assessed. There is no upper limit on the value of the individual's home as long as the equity in the property does not exceed £108,000. For example, an individual living in a property worth £400,000 with a mortgage of £300,000 may still be eligible for legal aid, as the equity does not exceed £108,000.

For applications made on or after 8 January 2021, payments from certain trust funds and the Criminal Injuries Compensation Authority may also be disregarded from the general capital limit.[8]

Income limits

An individual who passes the capital test must have their monthly income assessed.

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

  • income-based job seeker's allowance

  • income-related employment and support allowance

  • guarantee credit element of Pension Credit

  • universal credit

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

Gross income assessment

The maximum amount of gross income is £2,657 per month. If the gross income exceeds this amount, the person does not qualify for legal aid regardless of the amount of their disposable income.

All income for the last calendar month must be added up. 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 assessment

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 does not exceed £733 per calendar month.

Read more about eligibility from the Legal Aid Agency.

Financial eligibility waiver

The Legal Aid Agency (LAA) can waive the financial eligibility criteria at its discretion in cases relating to domestic violence and forced marriage.[9] 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,[10] 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 start work on a client's case until the adviser has seen proofs of means. These may include :

  • 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.[11]

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).

Reasons for termination of legal aid

Legal aid can be withdrawn for various reasons, including if the client:

  • was wrongly granted legal aid

  • does not provide all the information required/does not collaborate

  • ceases to qualify because of a change of circumstances

  • does not keep up with the payment of agreed contributions

  • consents/has received the legal aid services granted

  • goes bankrupt

  • has died.

How legal aid is stopped

The provision of civil legal aid can be stopped in two ways.

By discharge

The funding will stop from the point when the Legal Aid Agency (LAA) send the client a notice to tell them this is going to happen.

By revocation

The funding is cancelled retrospectively, if the LAA discovers that the client was wrongly granted legal aid, for example because they gave false information about their finances. In this case, the client may have to repay all the money spent on their case.

Help for ineligible clients

If the client does not qualify for legal aid, they 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:

Last updated: 23 February 2021

Footnotes

  • [1]

    s.10 Legal Aid, Sentencing and Punishment of Offenders Act 2012; retained EU rights from 1 Jan 2021 inserted by reg 3 Civil Legal Aid (Amendment) (EU Exit) Regulations 2019 SI 2019/505

  • [2]

    Part 6, Civil Legal Aid (Merits Criteria) Regulations 2013 (SI 2013/104).

  • [3]

    reg 30 Civil Legal Aid (Financial Resources and Payment for Services) Regulations 2013 SI 2013/480

  • [4]

    reg 8 Civil Legal Aid (Financial Resources and Payment for Services) Regulations 2013 SI 2013/480

  • [5]

    reg 38 Civil Legal Aid (Financial Resources and Payment for Services) Regulations 2013 SI 2013/480

  • [6]

    reg 37 Civil Legal Aid (Financial Resources and Payment for Services) Regulations 2013 SI 2013/480

  • [7]

    reg 37 Civil Legal Aid (Financial Resources and Payment for Services) Regulations 2013 SI 2013/480 as amended by reg 2(4) Civil Legal Aid (Financial Resources and Payment for Services) (Amendment) Regulations 2020

  • [8]

    reg 40 Civil Legal Aid (Financial Resources and Payment for Services) Regulations 2013 SI 2013/480 as amended by reg 6 Civil Legal Aid (Financial Resources and Payment for Services) (Amendment) Regulations 2020

  • [9]

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

  • [10]

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

  • [11]

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