There is, for the time being, a civil legal aid scheme covering many areas of law – not all, for example, most accident claims are excluded. Legal aid in civil cases (i.e. not criminal) are available to pay for advice and assistance on a wide range of issues currently including family disputes (for example, divorce and child contact proceedings), debt, education, immigration, employment, housing, mental health, community care, welfare benefits and asylum. The scheme sometimes extends to representation in caused by a barrister or solicitor that this depends on the specific area of law. Civil legal aid covers initial advice (known in the scheme as ‘legal help’).
The Coalition government plans to slash the £2.2bn legal aid budget by £350m. If the Legal Aid, Sentencing and Punishment of Offenders Bill goes on to the statute book in its current form, it will remove entire areas of laws from the legal aid scheme including ‘social welfare law’ which comprises advice on welfare benefits, employment, debt, housing advice (except where there is the threat of homelessness) and immigration. Ministers will also remove publicly funded legal advice for private family law (including advice on divorce, child custody, and child support) except where there is domestic violence.
There are three different eligibility criteria applied by the Legal Services Commission, which runs the legal aid scheme in England and Wales, that you have to meet to qualify for legal aid.
- Scope: The LSC can only fund those cases which come within the scope of legal aid as set out within the Access to Justice Act 1999. Certain proceedings such as defamation, and allegations of negligently caused damage to property are automatically excluded. (However, cases may be considered on an individual basis for exceptional funding, e.g. on human rights or public interest grounds).
- Merits: The LSC considers the prospects of success; cost benefit, i.e. whether the case is cost-effective. As the LSC says: ‘We wouldn’t spend £20,000 to get back £10,000.’ It also considers other matters such as alternative funding, importance to the client and wider public interest.
- Means: There is a complex means test and the financial limits for legal aid are gross monthly income of £2657 per month (or £31,884 per annum); disposable income of £733 per month; and disposable capital of £8000. If you have a partner your income is added together (unless your partner has a contrary interest or you have separated). If you are financially dependent on friends or relatives the LSc may include their incomes in the assessment. In determining disposable capital the LSC will disregard up to £100,000 of equity in the applicant’s main or only home.
In addition, special capital rules apply to pensioners (aged 60 and over) who are living on a low income (disposable income of no more than £315 per month) that allow the LSC to disregard capital of an amount between £10,000 and £100,000 based on a sliding scale. Applicants properly in receipt of Guarantee (Pension) Credit, Income Support, income-based Jobseeker’s Allowance, or income-related Employment and Support Allowance automatically qualify for legal aid, subject to scope and merits criteria.
All clients may have to pay back the Legal Aid fund out of any money or assets kept or gained as a result of legal aid, via the statutory charge. In this way legal aid acts as a loan.