Checking eligibility for legal aid

Nicola McEwen, Professional Support Lawyer at Shelter, outlines the tests applicable to clients in need of civil legal aid for a housing issue, and how to check if they are eligible.

Updated October 2023 | First published February 2022

Legal aid provides a vital lifeline in terms of access to justice for people who cannot afford the cost of specialist legal advice and representation at court. Advising people whether they qualify for legal aid is a critical part of a frontline adviser’s role.

What problems are in scope for legal aid

Civil legal aid is available for most housing related legal problems, but only people who meet the means test qualify financially.

Legal issues which legal aid solicitors and advisers can help with include:

• defending possession proceedings brought by a landlord or mortgage lender

• dealing with loss of the home due to bankruptcy or enforcement of a debt

• challenging local authority decisions about homelessness applications

• challenging unlawful discrimination and breaches of a person's human rights

• applying for a judicial review of a public authority decision

• complaining of serious issues with the condition of a person's home

Legal aid services

The main civil legal aid services are:

• controlled work (Legal Help and Help at Court)

• certificated work (Legal Representation)

Legal Help and Help at Court

Legal Help allows a specialist adviser to give advice and make representations on the client’s behalf to the other side.

Help at Court is available if the client needs help putting their case at a one-off court hearing. 

Legal Help and Help at Court can only be provided where there is a sufficient benefit to the client in receiving advice. This is the merit test for controlled work.

Both are free, subject to passing the means test.

Housing Loss Prevention Advice Service

The Housing Loss Prevention Advice Service enables some legal aid providers to provide advice on housing law, welfare benefits and debt to those who can show that their home is at risk, up until the first substantive court hearing.

This advice is free of charge and not means tested, so financial eligibility checks are not needed.

A list of providers can be found on gov.uk: Housing Loss Prevention Advice Service (HLPAS) - GOV.UK (www.gov.uk)

Legal Representation

A solicitor representing a client in connection with ongoing court proceedings will need to obtain a legal aid certificate from the Legal Aid Agency. The most common examples of court proceedings covered by a legal aid certificate are:

• defending possession proceedings and warrants

• certain 'fitness for habitation' and disrepair claims

• an appeal against or a judicial review of a homeless decision

• taking action for illegal eviction

Before making an application, the solicitor will need to consider the merits of the case. There is detailed guidance setting out the factors to be taken into consideration. These can include:

• prospects of success

• importance of the proceedings to the client or the public

• likely amount of compensation

• likely legal costs

• reasonableness of the case being funded by public funds 

Legal representation is means tested. Those on a very low income can get assistance free of charge. Those who pass the means test but have a higher income may have to pay a contribution to their legal aid for certificated work.

What to check

Only people who meet the means test qualify financially.

Follow a four step process to check your client's financial eligibility for legal aid, checking:

1. capital

2. any passporting benefits

3. gross income

4. disposable income

The resources of a co-habiting partner should usually be included in the assessment. 

If a relationship has completely broken down, and an ex-partner remains in the property but has separate finances, the client is treated as a single person. 

If the relationship is ongoing, the client’s and their partner’s resources are counted, even if one partner is in prison or living elsewhere.

1. Check your client's capital

A person who has more than £8,000 capital after allowable deductions is not financially eligible for legal aid, even if they receive a passporting benefit.

Capital includes all assets such as:

• money in the client’s current account

• savings and investments, for example shares and ISAs

• valuable possessions, for example jewellery and cars

• property

Household effects, personal clothing, tools of the trade and cars in regular use do not usually need to be included unless they are of exceptional value.

If your client owns their home, certain deductions are allowed from the value of their home. These include the total amount owing on the mortgage and a notional 3% for the cost of selling the property.

Up to £100,000 of the equity can be disregarded if the claim is against the property, for example a mortgage possession claim. A further £100,000 of equity can be disregarded if the client lives in the property as their only home.

Anyone with capital under the capital threshold must be then assessed on their income.

2. Check for passporting benefits

People receiving certain income-based benefits automatically qualify for legal aid if they pass the capital test. The passporting benefits are:

• income support

• income-based job seeker's allowance

• income-related employment and support allowance

• guaranteed element of pension credit 

• universal credit 

All other people must have their monthly gross income and disposable income assessed.

3. Check your client's gross income

A careful assessment of all the person's income must be completed, calculated on a monthly basis. It is important to do this correctly. Some income is not paid monthly, for example child benefit and tax credits are paid four-weekly.

To calculate income per calendar month:

• multiply weekly figures by 52 then divide by 12 

• multiply four-weekly figures by 13 then divide by 12  

Based on current figures, a person's gross income is over £2,657 per month, they are not eligible. This limit is higher if the household has more than four dependent children.

If your client's gross income is below this threshold, the next step is to calculate their disposable income.

4. Check your client's disposable income

A person is not eligible if their disposable income after deductions is over £733 per month.

Deductions should be made from the gross income total to calculate the person's disposable income. Current fixed deductions include:

• £338.90 for each child under 18

• £211.32 if the person has a partner

• £45 for employment expenses

Any housing costs should also be deducted from the total gross income. For people without dependents, the maximum which can be deducted for housing costs is £545.

Other deductions can be made for tax, national insurance, maintenance payments, childcare costs incurred through remunerative work or study outside of the home, and criminal legal aid contributions.

Once deductions have been applied, if the person's disposable income is below £733 per month, they should be eligible for legal aid.

Evidence of financial eligibility

The Legal Aid Agency does not usually allow a solicitor or specialist legal adviser to do any work until they have seen the relevant proof of the client’s financial situation. 

Accepted financial evidence can come from a variety of sources, and differs depending on the level of legal aid service required. 

Legal help

For applications for Legal Help and Help at Court, the person should provide:

• last month’s payslip(s)

• recent letter from DWP

• bank statement specifying benefits or other income such as pensions, student grant, loan, maintenance, dividends 

• if self-employed most recent accounts

• letter from HMRC about child benefit and tax credits

Legal representation

For Legal Representation, the person should provide:

• last three month's payslips 

• recent letter from DWP or bank statement specifying benefits and other income 

• 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 and investments

• rent or mortgage statement