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Last update: 29-09-2006
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Legal aid - England and Wales

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TABLE OF CONTENTS

1. What are the costs of a trial and who should normally pay them? 1.
2. What is legal aid? 2.
3. Can I benefit from legal aid? 3.
4. Can legal aid be obtained for all disputes? 4.
5. Is there a specific procedure for emergencies? 5.
6. Where can I obtain an application form for legal aid? 6.
7. Which documents should I attach to my request for legal aid? 7.
8. Where should I register my request for legal aid? 8.
9. How will I be informed of whether or not I am eligible for legal aid? 9.
10. If I qualify for legal aid, what should I do? 10.
11. If I qualify for legal aid, who will choose my lawyer? 11.
12. If I qualify for legal aid, will this cover all the costs of my trial? 12.
13. If I qualify for partial legal aid, who will pay the other costs? 13.
14. If I qualify for legal aid, will it cover any review I might make following the trial? 14.
15. If I qualify for legal aid, can it be withdrawn before the end of the trial (or even after the trial)? 15.
16. If I do not qualify for legal aid, can I appeal against this decision? 16.

 

1. What are the costs of a trial and who should normally pay them?

The costs will depend upon the exact nature of the case. Solicitors incur costs on the express authority of their clients; these costs can include the solicitors' fees themselves and also disbursements for costs such as court fees and expert opinions. If successful, clients may be able to recover some or all of these costs from the losing party, but if they lose or the losing party cannot pay, they are ultimately liable for their own solicitor’s costs. At the end of a case, the court will decide, taking into account all the circumstances of the case, who should pay the costs. Although, in general, the loser is ordered to pay the winner's costs, there are many exceptions to this principle.

2. What is legal aid?

The different levels of help in civil matters are:
  • Legal Help which covers initial advice and assistance with any legal problem.
  • Help at Court which includes assistance at court where full representation is not required.
  • Approved Family Help which includes the services covered by Legal Help and also includes issuing family proceedings and representation in these where necessary to obtain disclosure of information from another party, or to obtain a consent order following an agreement of matters in dispute.
Legal Representation covers legal representation for a party to proceedings or a person thinking of taking proceedings. It is the level at which urgent family cases and other cases which can be publicly funded are most likely to be dealt with. It is available in two forms: Investigative Help and Full Representation.

Support Funding which is the partial funding of very expensive cases which are otherwise funded privately, under a conditional fee agreement.

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3. Can I benefit from legal aid?

Funding by the Legal Services Commission is only available to individuals and there are no nationality or residence tests.

Means test

Applicants properly in receipt of income support or income-based job seeker’s allowance are financially eligible on income for legal help and help at court (but capital still needs to be within the financial limit), and eligible for free funding for Legal Representation (other than for immigration cases where the financial eligibility criteria is the same as for legal help).

People receiving Tax Credits are not automatically entitled to public funding, but may qualify for funding, as anyone else, if their means are within the limits below.

For legal help and help at court you must be able to show that your capital AND your income are within the current financial limits. In order to qualify for legal help, you must have no more than £2,288 of gross monthly income and £621 of disposable monthly income. You must also have no more than £3,000 of disposable capital.

For approved family help the income and capital conditions are the same as those which apply to legal representation.

The limits for legal representation are slightly different to those for legal help. People can get “free”, or non-contributory, help, if they have a gross monthly income of less than £2,288, a monthly disposable income below £268 and disposable capital of £3,000 or less. If their monthly disposable income is between £268 and £707, or disposable capital between £3,000 and £8,000, they will be offered funding on the basis that they agree to pay contributions towards their legal costs. These figures apply from April 2003 and are uprated periodically.

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Any money or assets which are the subject of the dispute are disregarded in the assessment of an applicant’s financial resources. However any income that is currently received from the asset will be included.

You should note that the means test for public funding may have changed since this page was last updated. Further information and detailed guidance about the means test can be found on the Just Ask website.

Merits test

Applications for public funding are also subject to a funding assessment, to ensure that the merits of the case justify the grant of funding. The Legal Services Commission will consider an application against criteria set out in its Funding Code; the exact nature of this assessment will vary depending on the type of case and the level of help required.

For legal representation, broadly speaking, the test is designed to measure, taking all the circumstances into account, whether a privately paying client of moderate means would be prepared to spend his or her own money on taking the case. The Commission must consider, for example, the prospects of success, any alternative sources of funding, and any other circumstances such as wider public interest or overwhelming importance to the applicant. It will also consider the possible benefits of litigation and, where possible, compare them to the likely costs.

The funding assessment for legal help is considerably simpler than for full legal representation, to match the relatively simple service on offer.

Support funding is only available where the reasonable costs of investigation or litigation are exceptionally high.

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4. Can legal aid be obtained for all disputes?

Legal Help and Help at Court can be used for most legal problems such as divorce or maintenance, debt and immigration matters. However, no funding (either through Legal Help, Help at Court or Legal Representation) is available for these types of work:
  • defamation
  • boundary disputes
  • conveyancing (except in proceedings to give effect to a court order where public funding has been granted)
  • making wills (except where the client is aged 70 or over; or disabled; or the parent of a disabled child)
  • trust law
  • negligently-caused personal injury or damage to property (except clinical negligence)
  • cases arising out of company or partnership law or the carrying on of a business.
These areas are excluded either because there is a viable alternative to public funding (for example, conditional fee agreements in personal injury cases) or because the Government believes that they do not have sufficient priority to justify the use of public funds. By limiting the scope of public funding in this way, more money has been made available for the areas where it is most needed, such as housing, domestic violence and protection of children.

Approved Family Help covers help in family cases short of full representation in contested proceedings.

  • All levels of help are available for cases in:
- the House of Lords;
- the Court of Appeal;
- the High Court;
- the county courts (except for judgement summonses and, usually, proceedings for undefended divorce and judicial separation);
- magistrates' family proceedings courts about marriage and the family (including separation, maintenance, residence/contact and defended adoption);
- Employment Appeal Tribunal, Mental Health Review Tribunal, Protection of Children Act Tribunal.
  • Funding is not generally available for advocacy before:
- a coroner's court
- tribunals (except for those mentioned above, and for cases before the General and Special Commissioners of Income Tax and the VAT and Duties Tribunal where the proceedings concern quasi-criminal penalties).
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However, Legal Help is available for preparation work.

None of these exclusions is absolute. Under section 6(8)(b) of the Access to Justice Act 1999, the Lord Chancellor has the power to authorise the grant of exceptional funding for cases outside the normal scope of the scheme, although applicants must still pass the relevant means and merits tests. The Lord Chancellor is prepared to consider authorising funding only in very exceptional cases, for example, those where there is a wider public interest or overwhelming importance to the applicant, or where it would be practically impossible for the applicant to proceed without funding.

Legal Representation is not available for cases outside England and Wales, except where a case is referred by the court to the European Court. Legal Representation is only available to individuals.

Support Funding provides partial funding for personal injury cases (excluding clinical negligence) and some multi-party actions where you are pursuing proceedings privately, under, or with a view to obtaining, a conditional fee agreement.

5. Is there a specific procedure for emergencies?

If your case is urgent, your solicitor can ask for emergency Legal Representation. This can be granted at once. Your solicitor may be able to make the decision to grant emergency Legal Representation without applying to the LSC Regional Office beforehand. Emergency Legal Representation covers limited urgent steps and lasts only until the Regional Office has taken a decision on your full application for Legal Representation. When you apply for emergency Legal Representation you must agree to co-operate with the Assessment Officer in his/her enquiries into your financial position and to pay any contribution that is assessed.

6. Where can I obtain an application form for legal aid?

For legal help or help at court you should contact an approved solicitor or legal advisor (from the not for profit sector such as Citizens Advice Bureau or a Law Centre expert) who holds a contract with the LSC to provide these levels of service. The solicitor/advisor will need to know about all your finances. S/he will then fill in a form. The Community Legal Service Directory lists solicitors who undertake publicly funded work. Further information can be obtained from the website or the CLS call centre, on 0845 608 1122 (for callers in the UK) or 00 44 20 7759 1171 (for callers from outside the UK).

For approved family help you apply through a solicitor who will fill in the appropriate form, which s/he will send to the LSC. Your application will be assessed by the LSC London Regional Office, which will decide whether it meets the criteria for funding.

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For legal representation you should apply through a solicitor. If you do not have a solicitor the LSC can try to help you choose one and s/he may also, using Legal Help, be able to help you prepare your application for funding. The majority of applications will need to be submitted to the Regional Office for a decision. In every case your solicitor will need to complete an application form on your behalf. It is important that you help your solicitor to complete any forms accurately and promptly. Most applications to the LSC Regional Office are processed within two weeks, some take longer. You may be sent a further form to fill in asking for more information about your finances. If you are, you should send it back immediately.

For support funding an information sheet on conditional fee agreements (“ CFAs” ) is available from the Legal Services Commission Head Office. Solicitors willing to act under CFAs are listed in the Community Legal Service Directory.

7. Which documents should I attach to my request for legal aid?

For legal representation Assessment Officers at the LSC Regional Office assess means in most cases and work out if you qualify financially and if you have any contribution to pay. To do this, the Assessment Officer may need to see evidence of your finances, including bank statements, savings books and details of your earnings. The financial application form will tell you what is required.

8. Where should I register my request for legal aid?

Applications are made through solicitors to the appropriate LSC Regional Office.

9. How will I be informed of whether or not I am eligible for legal aid?

For legal help or help at court your solicitor/advisor will tell you whether you qualify and they are able to assist you. If you do qualify financially you will not have to pay a contribution.

For approved family help your solicitor will explain how these criteria for funding apply to your case. The Regional Office can either grant or refuse the application.

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For legal representation the Regional Office Assessment Officer will work out whether you qualify financially. The Regional Office will also decide whether your application satisfies the relevant merits criteria for funding for your type of case. Your solicitor will probably not be prepared to deal with your case until a funding certificate is issued by the LSC which confirms that you have got funding. This is because a certificate does not cover your solicitor for any work done before it is issued.

10. If I qualify for legal aid, what should I do?

Your solicitor will advise you.

11. If I qualify for legal aid, who will choose my lawyer?

You will (see above) although you must choose a solicitor who has a contract with the Legal Services Commission.

12. If I qualify for legal aid, will this cover all the costs of my trial?

If funding is granted, it will cover all your solicitor's costs including disbursements such as court fees, although you may be asked to pay a fixed monthly contribution, depending on your means.

13. If I qualify for partial legal aid, who will pay the other costs?

See above.

14. If I qualify for legal aid, will it cover any review I might make following the trial?

If you lose a case where your case was not funded by the LSC you may still apply to us for funding to appeal to a higher court. If your case was funded by the LSC you can apply for an amendment to your funding certificate to cover an appeal. At this stage, the LSC will ensure that your case still meets the merits criteria.

15. If I qualify for legal aid, can it be withdrawn before the end of the trial (or even after the trial)?

If your income and/or capital increase while your legal representation funding is in force you must immediately notify the LSC Regional Office and your means may be reassessed. If your income decreases you may apply for your means to be re-assessed and your contribution may be reduced. If you come into money, for example, if you sell your house or win the lottery, while your case is being funded by the LSC, you may be asked to pay some, or all of your legal costs out of the money.

If you are granted funding, it may be limited to certain work, such as obtaining a barrister's opinion on your case, and a maximum grant may be specified. You will need to apply through your solicitor if you need to extend the amount of work covered or the maximum cost of the work your solicitor can do.

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The LSC can withdraw funding if it is no longer reasonable for you to receive it, for example if you refuse a reasonable settlement offer or if it becomes clear that your case has lower prospects of success than expected. This is to ensure that public money is not wasted in a situation where a privately paying client would be unlikely to proceed. If the LSC is considering withdrawing your funding, it will first give you a chance to show why it should not do so, and if it does decide to withdraw funding you have a right of appeal to an independent committee of lawyers. If funding is withdrawn, it will cover costs already incurred by your solicitors.

Statutory Charge

You also have to agree to pay the full costs of your case if it is found that you do not qualify for Legal Representation or if you refuse it when it is offered to you (because you are asked to pay a contribution).

You may also be asked to pay back some or all of your costs if your financial situation improves as a result of proceedings. At the end of a case, the LSC is obliged to recover its costs as far as possible. It will take account first of any contributions paid by you and any costs recovered from your opponent. After that, it will recover any remaining deficit from any property or money recovered or preserved in the course of the proceedings. A privately paying client would have to repay any outstanding costs in this way, and it is only fair that a funded client should do the same, if he or she can afford to. However, if the property in question is your home (or money set aside to buy a home) then you can defer payment until the next time you sell it, provided you agree to pay interest over the intervening period.

16. If I do not qualify for legal aid, can I appeal against this decision?

A solicitor/advisor can refuse to give you Legal Help or Help at Court. S/he need not give a reason. However, s/he may be asked to explain the reasons for his/her refusal by the LSC Regional Office.

If your application for Legal Representation is refused on merits grounds, the LSC will inform you of its decision and provide an explanation. You will then have fourteen days in which to appeal. The appeal is heard by a Funding Review Committee of independent lawyers, who consider the application in full. The Committee can give a definitive view of certain factors such as prospects of success, but the decision remains in the hands of the Legal Services Commission. That decision is final, and can only be challenged through the courts by judicial review of the way it was taken. If the appeal is unsuccessful, you can make a fresh application if you can provide further evidence to support your case.

If your application for approved family help is refused, you will have a right of review to the LSC Regional Director and ultimately to the LSC Funding Review Committee.

If you do not agree with your means assessment for legal representation, you may ask for a review of the assessment.

Further information

You can get further information on the Legal Services Commission's website and can get details of solicitors from the Directory or by telephoning 0845 608 1122 (for callers in the UK) or 00 44 20 7759 1171 (for callers from outside the UK).

The Customer Services Unit in the Policy & Legal Department, LSC Head Office, 85 Gray's Inn Road, London WC1X 8TX can help you by answering your questions about the system of public funding of legal services in England and Wales. It can also explain to you how incoming applications under the Strasbourg Agreement are dealt with but it may be helpful for you to know that Legal Services Commission Head Office is not itself able to decide whether funding should be granted or not.

« Legal aid - General information | United Kingdom - General information »

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Last update: 29-09-2006

 
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