Legal Aid Eligibility An Overview. Agenda. The LSC. Presentation to Law Works Pro Bono Advisers 14 May 2008

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1 Presentation to Law Works Pro Bono Advisers 14 May 2008 Legal Aid Eligibility An Overview. Agenda The LSC: facts and figures. Civil Legal Aid Eligibility: Scope, Excluded Cases, the Funding Code. Financial Eligibility: Non-means tested cases; Eligibility Limits and Waivers. Paying for Legal Aid: Contributions, the Statutory Charge and Costs. Withdrawal of Legal Aid. The LSC Established under the Access to Justice Act Is a non-departmental body, accountable to the Lord Chancellor and to Parliament. Responsible for creating and maintaining the Community Legal Service (CLS) and Criminal Defence Service (CDS): The CLS general information, advice and representation in relation to disputes about legal rights and duties, (spending 800 million/pa). The CDS advice, assistance and representation for individuals involved in criminal investigations / proceedings, (spending 1.2 billion/pa). 1

2 The LSC The LSC is overseen by a Board of 11 independent commissioners. The LSC headed by its Chief Executive Carolyn Regan, delivers its services through 5 regions: North; South; Midlands; London and Wales. Dedicated staff within 11 Regional Offices manage legal aid contracts and assess legal aid applications. LSC Expenditure Total Budget 2 billion. Spend - 39% Civil, 56% Criminal, 5% Admin. 06/07 1,064,100 Civil Acts of Assistance funded. 151,247 Certificates for Civil Court Proceedings (23,588 Non-Family). Advice and Assistance Contracted Scheme Solicitor and NFP. Increasing numbers (up to 876k in 06/07). Methods of Delivery Telephone and Internet. Community Legal Advice Centres and Networks. 2

3 Civil Legal Aid Eligibility Three aspects scope, merits and means. Scope: Determined by the Access to Justice Act 1999 and Lord Chancellor s Directions, the CLS Fund can only be used to fund certain types of proceedings. Some are automatically excluded from scope. Merits: The criteria is set out within the Funding Code and may vary according to the level of service and (for Legal Representation) case category. Means: The criteria / test is governed by the CLS (Financial) Regulations 2000 as amended. Scope of Funding The Community Legal Service Funds all work except: Foreign Law CDS Work Excluded areas of work Advocacy in excluded venues Excluded Cases Schedule 2 Personal injury or death (other than clinical negligence); Allegations of negligently caused damage to property; Allegations of defamation or malicious falsehood; Conveyancing, boundary disputes, the making of wills and matters of trust law; Matters of company or partnership law; other matters arising out of the carrying on of a business. 3

4 Exceptional Funding In applications for funding it is necessary to determine: Whether the service is excluded from scope, covered by Schedule 2 of the AJA Whether the service can nonetheless be funded because they are within the Lord Chancellor s directions on Scope s.6(8) of AJA If an individual case is excluded, and not brought back into scope by the Lord Chancellor s directions, an application for exceptional funding can be made under s.6(8)(b) of AJA The Funding Code The Funding Code was designed to provide the LSC with flexible rules directing resources to priority needs. The Key Merits Criteria: Prospects of Success, Costs benefit ratio, Alternative Funding, Alternatives to litigation. Levels of Service Legal Help; Help at Court; Family Help (lower or higher); Family Mediation; and Legal Representation: - Controlled Legal Representation Immigration and Asylum; or Mental Health. - Licensed work (certificate) and court proceedings. 4

5 ADR under the Funding Code Duty to avoid unnecessary or protracted court proceedings. All forms of ADR encouraged. Non-family mediation funded as a disbursement. Financial Eligibility S.7(1) of AJA 1999 requires that the LSC only fund services for those who are financially eligible under the regulations. The framework for the test itself is provided by the CLS (Financial) Regulations Assessment guidance is published externally in the LSC Manual and on our website. Non-means tested cases Reg. 3 Services available without reference to means: Representation for a child, parent or person with parental responsibility in Special Children Act proceedings (Public Law). Advice and Representation before the Mental Health Review Tribunal. Child Abduction cases (Hague convention). Advice and Representation in control order proceedings; application to Secretary of State under s(7)(1) of the Prevention of Terrorism Act

6 Eligibility Limits Level of service All levels including legal help Income Limit Gross Income 2530 Disposable Income 698 Capital Limit 8000 ( 3000 CLR immigration only). Income support, income based job seekers allowance and guarantee credit are passporting benefits. Gross Income 2530p/m Gross income for this purpose means the total income from all sources before any deductions are made. Certain state benefits are excluded from the gross income figure. The client s gross income must be 2530 per month or less. A higher gross income limit applies for families where there are more than 4 children. An additional 211 is added for the 5 th and each subsequent child. The application must be refused if the client s gross income exceeds this level. Disposable Income 698 p/m Disposable income is calculated after allowing for the following deductions for living expenses: Tax and National Insurance. Dependants Allowances (fixed amount). Maintenance paid by the client. Housing costs. Employment Expenses (fixed amount). Child Care Costs incurred due to work / selfemployment. 6

7 Disposable Capital 8000 Every resource of a capital nature is considered for the purposes of the capital assessment including money investments and property. The equity in a client s main dwelling will also be included where this exceeds the equity disregard of 100,000. The maximum allowance for mortgage debt is 100,000. Items of furniture, clothes and vehicles in everyday use are not normally included unless they are of an exceptional value. Eligibility Limit Waivers Eligibility limits for income and capital can be waived in the following proceedings: Protection from Harm to the Person (Domestic Violence); Certain Inquests; Multiparty Actions of Wider Public Interest; Cross Border Disputes (client domiciled or habitually resident in another EU member state, except Denmark). Contributions Legal Help, Help at Court, CLR immigration and asylum, Family Help (Lower) and Family Mediation: No contributions from capital or income. Legal Representation (apart from CLR immigration and asylum) or Family Help (Higher): Eligible clients with disposable capital over 3000 must pay a lump sum contribution. Eligible clients with disposable income above 300 p/m must pay a monthly contribution from income. 7

8 The Statutory Charge If the client had legal aid and as a result of their case gained or kept property or money; he/she may be required to pay back all or some of the costs of the case. Legal aid in these circumstances will act as a loan that the client has to repay. Costs Court orders costs in usual way BUT Funded client is only liable for those costs to the extent the court considers it reasonable (Section 11). Prescribed rates for payments from the Fund. Full Inter Partes rates for payments from other side. Withdrawal of Funding Main reasons for withdrawal of funding: Financial or Merits Criteria no longer satisfied Case disposed of etc Client conduct Funding may be withdrawn by way of discharge (cover ceases as of the date of the discharge notice) or revocation (the certificate is cancelled and the client becomes liable for all costs previously incurred under the certificate). 8

9 Legal Aid & Pro Bono Work Is your client eligible for legal aid? Refer to the rules governing civil legal aid. Citizen s calculator available for use by members of the public, from Community Legal Advice. How can you find a legal aid supplier? Community Legal Advice. Is there anything you can do to help your client get legal aid? Provide information on means, scope and merits as appropriate. Make contact with the legal aid supplier and refer your client. Where to get more information Legal Services Commission Website: Community Legal Advice: LSC Manual Volumes 1 4 published by The Stationary Office (TSO) 9