Legal help or advice should be given by a suitably qualified person with professional liability insurance.
This information should not be relied upon as legal or professional advice. Read the disclaimer.
Legal aid in England and Wales
Legal aid is the system of public funding to help meet the costs of legal advice, representation in court or at a tribunal and family mediation. 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.
Which cases are eligible for civil legal aid?
In order potentially to be eligible for legal aid, a case needs to come within the types of civil legal dispute listed in Schedule 1 Part 1 of the Legal Aid, Sentencing and Punishment of Offenders Act 2012 (“LASPO”). Schedule 1 Part 1 also includes exceptions to those services.
Schedule 1 Part 2 of LASPO lists services that are excluded from eligibility.
Matters coming within scope
Matters that may be eligible for civil legal aid include:
- care, supervision and protection of children
- special educational needs
- children or vulnerable adults where abuse has taken place
- mental health and mental capacity
- appeals relating to welfare benefits
- domestic violence (in relation to home rights, including non-molestation orders)
- victims of domestic violence (in relation to matters governed by family enactments)
- mediation in family disputes
- some immigration matters
- housing (where a home is at risk, or the person is homeless).
Exceptional case funding
If a case is not within scope, legal services may exceptionally be made available under section 10(3) of LASPO. For example, a case may be deemed exceptional if failure to provide funding would breach an individual’s rights under the Human Rights Act 1998.
How does someone qualify for civil legal aid?
An applicant must qualify for civil legal services before they are made available, based on an assessment of their financial means (LASPO, section 21) and the merits of their case. The merits criteria 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.
The financial resources of both the applicant and their partner will be assessed (PDF). However, a partner’s means will not be included if they have a contrary interest in a dispute (for example, a matrimonial dispute), or the applicant and their partner are separated, and the separation is likely to be permanent.
In general, means are assessed based on:
- gross income
- disposable income, and
- disposable capital (PDF) (such as cash savings, residential property, company shares).
The eligibility limits for each of these measures 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”).
An individual may be required to contribute to the cost of legal services if the threshold for contributions is exceeded.
Legal services that may require a contribution (PDF) include full legal representation, some forms of help in the Family Court and other services that involve in instructing an advocate.
Legal services that qualify as ‘Controlled Work’ do not require contributions from income or capital. Controlled Work is defined in The Civil Legal Aid (Procedure) Regulations as the following types of legal assistance:
- legal help
- help with family mediation
- help at court
- family help (lower)
- legal representation for defined proceedings.
The Legal Aid Agency has published a quick guide to eligibility for Controlled Work and Family Mediation (PDF).
Means assessment for Controlled Work is undertaken by legal aid providers.
If an individual receives particular benefits, they are “passported” through the income means test (PDF). This means they qualify automatically for legal aid within the given limits for income. However, the individual will still be subject to a means test of their disposable capital.
Passporting benefits are:
- income support
- income-based Jobseeker’s Allowance
- Universal Credit
- Guarantee Credit element of Pension Credit
- income-related Employment and Support Allowance.
of the Immigration and Asylum Act 1999, the individual is passported through both income and capital tests for Controlled Work (immigration and asylum matters only).
Domestic violence, female genital mutilation and forced marriage
Eligibility limits for gross and disposable income and disposable capital may be disapplied if an individual applies for legal representation for domestic violence in relation to home rights. These include the right to occupy the matrimonial/civil partnership home. Eligibility limits may also be disapplied in cases of female genital mutilation or forced marriage, where representation is sought for an injunction or other protective orders – or where an order has been breached.
This refers to capital value that is difficult to access – for example where an applicant has an interest in a house that cannot easily be sold, or they cannot borrow against the asset.
If the value of the capital interest is included in a means assessment, it may result in an individual not being eligible for legal aid because they are deemed to have enough capital to fund legal representation themselves.
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 can now consider on a case-by-case basis (PDF) how to value capital assets other than money. They have the option not to value an asset at the price it would realise if sold – as would otherwise be the case – and consideration should be given 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.
Alongside the income and capital tests, legal aid is only available where the merits of the case satisfy the requirements of the Merits Regulations. There are various general and specific tests for assessing the merits of a case. Other merits criteria to be determined, depending on the type and circumstances of the case, include:
- how likely it would be to get a successful outcome at trial or other final hearing – the ‘prospects of success 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 ‘reasonable private paying individual test’
- the likely benefits to the individual of legal proceedings and if they justify the likely costs – the ‘proportionality test’.
Getting help and how to apply
GOV.UK provides general information on the legal aid system and how it works.
Applicants can check on the Government website whether their case is within scope using the ‘Check if you can get legal aid’ questionnaire. If the case is within scope, they will then be able to see if they qualify financially.
If a case is within scope, and an individual qualifies financially, they may be able to get free assistance from the national Civil Legal Advice helpline.
The Government has published guidance on how to apply for legal aid, where a case may qualify for Exceptional Case Funding.
The Legal Aid Agency has an online search tool for finding a legal adviser or family mediator with a legal aid contract in England and Wales.
Information on legal aid as it relates to family law matters can be found on the Child Law Advice website.
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.
A comparison of the different legal aid schemes in England & Wales, Scotland and Northern Ireland.
Changes to civil legal aid have reduced spending, but whether they have increased costs elsewhere or added to the difficulties people may face in obtaining help with legal problems remains controversial.