Legal Aid and social welfare law

There is a strict means tests for getting legal aid for most types of problems experienced by those with legal difficulties arising out of health or social care disputes. It is available, but hard to get, in these areas of legal dispute

  • Community care – eg the council, under the Care Act
  • Actions against public authorities – eg the NHS
  • Mental health and mental capacity
  • Judicial review
  • Special educational needs

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 her/his enforceable European Union (EU) rights.

You will have to provide information about your financial circumstances. This will include details of your income, your savings, whether or not you own your home, whether you have a mortgage, and whether you receive a pension, as well as whether there are people who are financially dependent on you.

If you have a partner, you will also have to provide information about their finances.

Evidence will be required of your last month’s payslip(s); a 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; a letter from HMRC/latest bank statements showing child benefit and/or tax credits; details of other savings/investments; a rent or mortgage statement.

When considering whether or not you are eligible for legal aid, the Legal Aid Agency will look at your disposable income (the money you have left after paying basic living expenses) and your disposable capital (any savings, property, investments or valuable belongings that you could use or sell to pay for a lawyer).

https://www.gov.uk/check-legal-aid is a legal aid checker for members of the public for civil legal aid purposes.

https://civil-eligibility-calculator.justice.gov.uk/ecalc_lar/guidance.asp#2C_006 is a legal aid eligibility calculator online that you can look at, but it’s complex, and law firms will provide this service for free.

https://england.shelter.org.uk/__data/assets/pdf_file/0020/1320734/Housing_matters_114_October_2016_LegalAidflowchart.pdf is an easier flow chart, courtesy of the NHAS.

https://docs.google.com/spreadsheets/d/1EbpazFdE6GPV8SBabf3dtMmWl8SB_LRHrueASPN-aAA/template/preview?usp=drive_web&ouid=%7BuserId%7D this is an excel spreadsheet template provided by a third party, a solicitor called William Flack.

To qualify, one’s joint (if living as if a couple) income has to be

  • Less than £315 per month net (your monthly ‘disposable income’ after deduction of listed allowances) or
  • Less than £733 a month net, on the basis of paying a contribution
  • With a maximum gross monthly income of £2657 in any event.

If you’re on certain benefits, you will be passported through the income test, but your capital will still be assessed. Those benefits are:

  • Income Support (IS)
  • (income-based) Jobseeker’s Allowance (JSA)
  • Universal Credit (UC)
  • Pension Credit Guarantee Credit   (GC)
  • (income-related) Employment and Support Allowance (ESA)

Your joint capital has to be assessed, and all the value of your home counts, apart from the first £100K, and £100K of any mortgage, which is ignored.

If you have a home with a value of £200,000 with a £95,000 mortgage then you could have £100K 000 of equity disregarded and another £95,000 disregarded using the mortgage disregard. This would leave a capital figure of £5,000 for assessment.

The capital test is this:

Less than £3K – legal aid

Less than £8K – legal aid with a contribution of up to £4999

(no contribution required if only legal HELP has been provided)

One’s partner is defined as:

(i) an individual’s spouse or civil partner, from whom the individual is not separated due to a breakdown in the relationship which is likely to be permanent;

(ii) a person with whom the individual lives as a couple; or

(iii) a person with whom the individual ordinarily lives as a couple, from whom they are not separated due to a breakdown in the relationship which is likely to be permanent;

Although in general a former couple who are permanently separated due to the breakdown of their relationship will usually live in separate properties, this may not always be the case. It is possible for former partners to live separate and apart in the same property. This would be the case if they regarded their relationship as at an end but remained living in the same property simply waiting for the property to be sold before going their separate ways.

A contribution can be a lump sum from your assets or make monthly payments from your income.

The Legal Aid Agency (LAA) will make a charge or claim – known as the ‘statutory charge’ – on any money or property you win or preserve.

If this is your home, payment can be deferred and the debt placed as a charge on your home (similar to a mortgage).

Your legal aid adviser or solicitor will explain to you that:

• for all but the most serious problems, you must show that you cannot afford to pay your legal aid costs

• you may need to contribute to or pay back the legal aid costs later.

The notion of a statutory charge has been in existence since the very inception of Legal Aid: Legal Aid will be treated as a loan if property /money is recovered due to its assistance.  By statute, there will be a charge over any such property in respect of any shortfall of costs incurred by a legally aided party after deduction of costs recovered by that party (if any). The concept derives from the common law solicitor’s lien over property recovered and has a public policy justification that the legally aided litigant should not be in a better position than a privately funded one.

Pro bono work

Some lawyers offer some services free of charge. This is called ‘pro bono’. Further information is available from the following:

Reducing exposure to having to pay for legal advice

The court or tribunal may order your opponent to pay some or all of your legal aid adviser’s costs. You may pay less if your opponent pays these costs. But you are responsible for recovering the debt from your opponent. If you succeed in getting your opponent to repay your legal costs, you must use the money to repay the LAA immediately.

The LAA charges interest – currently 8% – on the amount you owe under the statutory charge. This is calculated daily.

Types of legal assistance funding

Legal help is for preliminary legal advice, for which the lawyer will get a fixed fee of £266 + VAT if it’s a community care matter (other fields attract different rates). The lawyer will have to know enough to get to the essence of the matter without help from a barrister and give advice or engage in some correspondence to get paid. Firms only get to commence a specific number of matters per year, so may not want to waste them on matters that aren’t easily grasped. (In October 2007, the fixed fee for community care legal help cases was £290 but it has actually gone down rather than up).

Getting the payment is at risk up to an including the application for permission, if permission is refused, unless the public body withdraws its decision, or the court orders an oral hearing of the permission application or a combined hearing of the permission application and the claim.

The following further funding types depend on the matter passing a merits test, based on standard and additional and specific public law criteria described after the two different types:

a) Investigative Representation is for cases that are not clear cut, where you need further work, and analysis from an expert. Evidence gathering, asking a barrister for advice about the law, or for applying the law to the facts, and making a prediction.

b) Full Representation is funding for taking a case where the barrister thinks that the merits are strong.

In order to get legal advice and help putting your case forward, it will need to be reasonable for the government to fund the lawyer’s work with the cost of doing so outweighed by the benefit you will gain from it.

In order to get legal aid for representation at a court or tribunal, you will need to meet a higher threshold. In many cases the test will be whether you are at least as likely to win your case as to lose it.

The criteria include the non-existence of other sources of funding, and a view as to the prospects of success being 50% or better. Where assessed to be lower, there is an additional point – wider public interest, overwhelming personal interest, or a human rights point.

If an oral hearing is occasioned because the defendant fails to agree in pre-action correspondence to a reasonable interim position (such as a stay of the relevant decision) it is proper that the claimant who succeeds in obtaining interim relief makes an application for costs at that stage.

Other costs points to consider

A protective costs order (PCO) seeks to limit or completely remove the costs risk to a claimant in bringing a judicial review claim. It provides an important means of allowing genuine “public interest” litigation to proceed, especially where actions are brought by charities or community groups with little funding and pro bono legal representation. PCOs also reflect the fact that at the “cutting edge” of public law, there may be considerable risk and uncertainty in mounting what may be important, but ultimately unmeritorious challenges.

The cost risk of the application itself is also limited. The guideline figures are £1,000 for an unsuccessful application, decided by the judge on the papers. If the application is renewed to an oral hearing, and it is refused, the cost risk in relation to this is normally a further £2,500. These figures may be reduced if the claimant cannot afford these sums.

The principle behind PCOs is that if a claimant cannot afford the risk of having to pay the other side’s costs, they should be protected from such a possibility at the outset of the case. Such orders are considered appropriate where the court is satisfied the claim is of public importance and that it is in the public interest to have the issues decided by a court. They enable claimants to pursue cases, safe in the knowledge that even if they lose there will either be no order for costs against them, or that any order to pay the defendant’s costs will be capped to a limit set by the court, at a level they can afford.

A protective costs order may be made at any stage of the proceedings, on such conditions as the court thinks fit, provided that the court is satisfied that:

  1. the issues raised are of general public importance;
  2. the public interest requires that those issues should be resolved;
  3. the applicant has no private interest in the outcome of the case;
  4. having regard to the financial resources of the applicant and the respondent(s) and to the amount of costs that are likely to be involved, it is fair and just to make the order; and
  5. if the order is not made the applicant will probably discontinue the proceedings and will be acting reasonably in so doing

Examples of types of PCO

  1. a case where the claimant’s lawyers were acting for free, and the effect of the PCO was to prescribe in advance that there would be no order as to costs in the substantive proceedings whatever the outcome
  2. a case where the claimants were expecting to have their lawyers’ reasonable costs reimbursed in full if they won, but sought an order capping (at £25,000) their maximum liability for costs if they lost
  3. a case similar to (ii) except that the claimants sought an order to the effect that there would be no order as to costs if they lost
  4. a case where the claimants bringing the proceedings with the benefit of a Conditional Fee Arrangement which is otherwise identical to (iii).

When making any PCO where the applicant is seeking an order for costs in its favour if it wins, the court should prescribe by way of a capping order a total amount of the recoverable costs which will be inclusive, so far as a CFA-funded party is concerned, of any additional liability.

The purpose of the PCO will be to limit or extinguish the liability of the applicant if it loses, and as a balancing factor the liability of the defendant for the applicant’s costs if the defendant loses will thus be restricted to a reasonably modest amount.

The applicant should expect the capping order to restrict it to solicitors’ fees and a fee for a single advocate of junior counsel status that are no more than modest.

The overriding purpose of exercising this jurisdiction is to enable the applicant to present its case to the court with a reasonably competent advocate without being exposed to such serious financial risks that would deter it from advancing a case of general public importance at all, where the court considers that it is in the public interest that an order should be made.

The beneficiary of a PCO must not expect the capping order that will accompany the PCO to permit anything other than modest representation, and must arrange its legal representation (when its lawyers are not willing to act pro bono) accordingly.

If a PCO is otherwise appropriate, the existence of the applicant’s private or personal interest should disqualify him or her from the benefit of such an order. The nature and extent of the “private interest” and its weight or importance in the overall context should be treated as a flexible element in the court’s consideration of the question whether it is fair and just to make the order.

Recent concern about the legal aid system – an all party parliamentary group is considering sustainability of the sector

It has been more than 20 years since fees were properly reviewed. At no time in the intervening period has the government given due consideration to the sustainability of civil legal aid providers. The All-Party Parliamentary Group on Legal Aid is launching a cross-party sustainability inquiry.

When the income is fixed or declines and the cost of delivering services increases, the consequences have been adverse and predictable: a decline in those willing to take on or retain contracts; an inability to recruit and retain staff; acute vulnerability in the face of crises such as the one currently gripping the nation; a lack of resources to invest in technology, staff development and new ways of working; and, for some, an inability to keep pace with the heavy toll of compliance.

The sector that has survived because of the willingness of legal aid lawyers to go above and beyond, day in, day out, effectively donating thousands of hours of free labour to prop up a failing system. Providers also subsidise legal aid work with income from other departments or grant funding. They chase the Holy Grail of inter partes costs orders or those few big cases that cover the costs of the many on which they lose money. That doesn’t sound like a sustainable system.

In other sectors, rising costs are generally passed on to customers and consumers. This is reflected in numerous official indicators such as the retail price index (RPI) and the consumer price index (CPI). If we compare legal aid fees with the rising cost of delivering services, the analysis does not read well for the government. Taking two examples illustrates the point that current fees simply do not reflect reality.

In October 2007, the fixed fee for community care legal help cases was £290. It’s now £266.

The hourly rate for preparation and attendance in civil certificated cases was £70 in London and £66 outside. These fees were subject to a 10 per cent cut in 2011 and have not been adjusted since.

If the contracts contained mechanisms to uprate fees in line with the RPI, the rates would have increased by 2019 to £406, £98 and £92 respectively. These increases would have done nothing more than ensure that fees kept up with the rising cost of delivering services, which, according to the RPI, cumulatively increased by anywhere between 40 and 50 per cent in those 12 years. Without that mechanism, lawyers are being continuously asked to provide the same level of high-quality service for, in real terms, an ever-decreasing fee.

Salary levels for legal aid lawyers are not directly linked to fees, but there is an intrinsic relationship between the income that can be derived from legal aid and the amount that organisations can afford to pay their staff. This relationship impacts on morale, recruitment, retention and working conditions.