Civil Legal Aid

Legal aid in England and Wales 

Legal aid is the system of public funding to help meet the costs of legal advice and, in some cases, representation in court or at a tribunal. It is administered in England and Wales by the Legal Aid Agency. The provision of civil legal aid is separate to that of criminal legal aid, and each is assessed differently in terms of eligibility. The following gives an overview of eligibility for civil legal aid.

Scope

In order for an applicant potentially to be eligible for civil legal aid, their case needs to come within the types of legal dispute listed in part 1 of schedule 1 to the Legal Aid, Sentencing and Punishment of Offenders Act 2012 (LASPO), which also includes exceptions to those services.

Part 2 of schedule 1 to LASPO lists civil legal disputes that are expressly excluded from eligibility.

Exceptional case funding

If a case is not within scope, legal services may be made available exceptionally under section 10(3) or 10(4) of LASPO. A case may be deemed exceptional if, for example, failure to provide funding would breach an individual’s rights under the Human Rights Act 1998 or would breach their rights to the provision of legal services that are assimilated enforceable rights (that is, rights under retained EU law).

Applicants for exceptional case funding must generally meet applicable means and merits criteria (PDF), although some applications relating to funding for inquests (PDF) are not subject to a means test.

Qualifying for civil legal aid

An applicant must qualify for civil legal services before they are made available. In most cases this is based on an assessment of the applicant’s means (as required by section 21 of LASPO) and the merits of their case. Merits are assessed by reference to criteria set out in the Civil Legal Aid (Merits Criteria) Regulations 2013 (the merits regulations).

The following provides a brief overview of the means and merits tests.

Means 

The means of both the applicant and their partner will generally be assessed. However, a partner’s means will not be included if they have a contrary interest in a dispute (for example, if the partner is an opponent in a matrimonial dispute), or the applicant and their partner are separated, and the separation is likely to be permanent due to the relationship having broken down.

In general, means are assessed based on:

• gross income
• disposable income
• disposable capital (such as cash savings, company shares, or residential property)

The eligibility limits for income and capital are set out in regulation 7 and regulation 8 of the Civil Legal Aid (Financial Resources and Payment for Services) Regulations 2013 (the resources regulations).

Non-monetary and ‘trapped’ capital

The value of non-monetary capital for the purposes of a means assessment is usually the amount the asset would realise if sold.

However, capital may be ‘trapped’ if it is difficult to access – for example where an applicant has an interest in a house that cannot easily be sold.

Following a ruling from the High Court in R (on the application of GR) v Director of Legal Aid Casework, those carrying out means assessments have the discretion to value non-monetary capital assets other than at sale value, and they should give consideration to any representations made by, or on behalf of, the applicant. This may include evidence that a lack of legal assistance would breach their human rights, and/or right of access to justice.

Contributions

An individual may have to contribute to the cost of legal services from income and/or capital if the threshold for contributions is exceeded.

Legal services that may require a contribution (PDF) include full legal representation, some forms of help in family matters (‘family help (higher)’), and advocacy services relating to exceptional cases.

Legal services that qualify as “Controlled Work” do not require contributions from income or capital if an applicant qualifies within the relevant financial limits. The Civil Legal Aid (Procedure) Regulations 2012 define the following types of civil legal services as “Controlled Work”:

• legal help
• help with family mediation
• help at court
• family help (lower)
• legal representation for defined proceedings (for example, those in the Immigration and Asylum Chamber of the First-tier Tribunal)

Passporting 

If an individual receives particular benefits, they are “passported” through the income test. This means they qualify automatically for legal aid within the given limits for income without having to pay contributions. However, the individual will still be subject to a means test of their disposable capital.

Current passporting benefits are:

• Income Support
• income-based Jobseeker’s Allowance
• Universal Credit
• Guarantee Credit element of Pension Credit
• income-related Employment and Support Allowance.

In cases where an individual receives Asylum Support payments under section 4 or section 95 of the Immigration and Asylum Act 1999, the individual will be passported through both income and capital tests for the immigration and asylum matters set out in regulation 6(1) of the resources regulations.

Exceptions to means testing

Regulation 5 of the resources regulations sets out exceptions to the requirement for a means test for the provision of certain civil legal services. These include applications relating to particular family matters and certain applications relating to inquests.

Domestic violence, female genital mutilation and forced marriage 

Where an individual applies for legal representation in relation to domestic violence and home rights, and protective orders such as non-molestation orders and domestic abuse protection orders, eligibility limits for income and disposable capital may be disapplied. Eligibility limits may also be disapplied in cases of female genital mutilation or forced marriage. In all cases, applicants must be seeking representation for an injunction or protective order, or a committal for breach of an order.

Merits 

Alongside the income and capital tests, legal aid is generally only available if the merits of the case satisfy the requirements of the merits regulations. There are various merits tests that may be used to assess an application for civil legal services, depending on the nature of the case. These include:

• the ‘prospects of success test’  – the likelihood of obtaining a successful outcome at trial or at a final hearing
• the ‘reasonable private paying individual test’ – the potential benefit to be gained from providing legal services and if that justifies the likely cost, such that a reasonable private paying person would be prepared to start and continue proceedings
• the ‘proportionality test’ – the likely benefits to the individual of legal proceedings and if they justify the likely costs

Getting help and how to apply 

The gov.uk page, Legal aid, provides general information on the legal aid system in England and Wales.

Potential applicants for civil legal aid can use the government’s Check if you can get legal aid questionnaire to see if their case is within scope.

An individual may be able to get free assistance from the government’s Civil Legal Advice (CLA) service, if their case is within scope and they qualify financially.

The Legal Aid Agency has published guidance for the public on how to apply for exceptional case funding.

The gov.uk tool, Find a legal aid adviser or family mediator, is a database of professionals that can be searched by postcode, firm or organisation name, and case type.

Disclaimer

The Commons Library does not intend the information in this article to address the specific circumstances of any particular individual. We have published it to support the work of MPs. You should not rely upon it as legal or professional advice, or as a substitute for it. We do not accept any liability whatsoever for any errors, omissions or misstatements contained herein. You should consult a suitably qualified professional if you require specific advice or information. Read our briefing for information about sources of legal advice and help.