chapter 4 ( access to justice) Flashcards
What is the Legal Aid Agency?
The Legal Aid Agency is responsible for the administration of civil and criminal legal aid in England and Wales. Their role is to ..
-make sure that legal aid services provided by solicitors, barristers and the not-for-profit sector are available to the general public
-fund the civil legal aid service
-run the public defender service to give a range of services within the criminal defence market
What is the civil legal advice service?
The civil legal advice service provides free and specialist initial legal advice to people across England and Wales who qualify for legal aid. It advises on matters such as debt, education, discrimination, housing and family issues.
What is civil legal aid?
Civil legal aid provides funding for claimants in certain civil disputes when legal advice, mediation or representation in court is required. The claimant will have to pass a means and merits test. If civil legal aid is granted, this will pay for advice, assistance and legal representation by a lawyer. If the claimant does not qualify for legal aid they will have to pay their own legal costs unless they can obtain a conditional fee agreement.
What is the merits test? ( civil)
The merits test looks at the reason for taking the action and the chance of success. Only certain limited types of claims are able to be funded by civil legal aid. These include repossession of a property, homelessness, asylum and immigration cases or protection from violence or harassment.
What is the means test (civil)
The means test looks at both the claimants income and capital. It will also look at their partners finances unless they have a contrary interest.
-Disposable capital limit is set at £8000 for all civil legal services
-Clients gross monthly income should be £2657 or less
What is criminal legal aid?
Criminal legal aid services are under the jurisdiction of the Legal Aid Agency. The agency enters into contracts with legal firms to provide legal services to people charged with criminal offences.
What is the advice and assistance for individuals held in custody?
Under s13 of the legal aid, sentencing and punishment of offenders act 2012 , legal aid for advice and assistance is provided for a suspect detained in police custody and who has requested legal advice.
-the scheme is not means tested
-advice is provided by duty solicitors, usually over the telephone at first
-the duty solicitor decides whether a suspect qualifies for the scheme and for either telephone or face to face advice
What is the advice and assistance for criminal proceedings following charge?
A defendant needs to pass a means and merits test in order to receive legal aid for advice and assistance from a solicitor or a barrister.
What is the means test? (criminal)
The defendants income and capital and those of their partner will be considered together, unless the partner has a contrary interest. Their income is means tested for cases both the magistrates and crown court. If the defendant receives state benefits, they will automatically pass this test.
-Less than £3398 is funded for both magistrates and the crown court, more than this is not funded in either courts
What is the merits test? ( criminal)
This test considers the merits of the case and whether legal aid should be granted - for example if there any previous convictions , the nature of the offence and the risk of custody if found guilty. The more serious the charge or possible consequences, the more likely it is that their case will qualify for legal aid. This test also takes into account the Widgery criteria
the widgery criteria involves applying examples to your case such as
-will i lose my liberty?
-lose my livelihood?
-is there a substantial question of law involved?
What is a conditional fee arrangement?
-A Solicitor can enter a conditional fee arrangement with their client in many types of civil cases. These are particularly used in personal injury claims but cannot be be used in family or criminal cases
-a CFA ensures that the client only pays the solicitor if they win the case for the client
- it will place a cap or maximum on the amount a solicitor can charge
-if the case is lost, a solicitor cannot claim any costs. So a solicitor will only agree to the CFA if the case had a good chance of success/ usually more than 75% chance
- the agreement usually consists of a success fee clause. This is the added fee that a solicitor becomes entitled to under a CFA if their clients case is successful. If the client wins the case they cannot claim the success fee from the loser in addition to their costs
Due to the rule on civil cases that the loser pays the winners legal costs, it will be a term in the CFA that the client takes out an ‘after the event’ insurance policy to cover the costs of the other party in the case, if the case is lost
What is the citizens advice bureaux
-This is a charitable organisation and there is a bureaux in many towns and cities across the country.
-They are staffed by both full time employees and trained volunteers who give general advice across a wide range of issues
-This is done by face to face contact, telephone conversations and by email
-The main areas of advice are for debt, consumer issues; claiming welfare benefits, housing problems and employment matters
-Many citizens advice offices have arrangements with local solicitors who offer clinics to give advice on purely legal issues. The solicitors are likely to offer a cheap or free first advice session
What are law centres?
-Law centres offer free, non- means tested advice to people living in their area and advice and representation in areas where there are few or no solicitors.
-They are funded by central or local government but have found it increasingly difficult to gain enough funding despite covering a need
-Most law centres will have a qualified solicitor working full- time, supported by volunteers
What is the Pro Bono?
-Volunteer Barristers staff a Bar Pro Bono Unit, based in London, which gives free legal advice on a range of legal issues to members of the public who cannot afford legal fees and who do not qualify for civil legal aid. The unit may also represent a member of the public in any civil legal proceedings.
What is the Free Representation Unit?
-This body, based in London and Nottingham provides advice and legal representation in social security and employment tribunals. They help members of the public who are not eligible for legal aid and cannot afford lawyers.
-Their work is carried out by volunteers, who are often law students and legal professionals in the early stages of their career. All FRU’s representatives are trained and supervised by legal officers. In addition, many universities around the country encourage their law students to offer free legal advice to members of the public in their area.
How do Trade Unions offer support and advice?
-They will usually offer their members free legal advice on a range of employment- related maters and other matters such as personal injury in an accident outside work.
-Members of a union generally pay a subscription which covers the giving of legal advice and if necessary, representation throughout a case. A union often employs full-time specialist advisors to deal with work- related issues and will negotiate with an employer on behalf of their members
-In personal injury claims, a union will usually refer a member to a specialist lawyer and then cover the lawyer’s costs.
How do insurance companies offer support?
Many insurance policies include cover for help with legal fees for advice and, if necessary taking a case to court. Examples..
1. Vehicle insurance covers the insured for advice on claims arising from road accidents
2. A house insurance policy will cover advice and assistance if a visitor is injured on the premises
3. Specialist insurance policies can be bought to cover legal costs: ‘before the event’ policies are taken out where there is no known claim at the time of purchase, ‘after the event’ policies are required when a CFA is entered into. This policy covers the lawyers fees and the winners legal costs if the claim is lost.
How do charities offer legal support and advice?
-Many charities offer some form of free specialist advice in their area of work.
-They will employ either trained advisors or volunteers to provide initial advice and assistance to those that contact them. Some charities have telephone helplines offering legal advice.
-Examples:
-Gingerbread offers advice on any issues that may impact on a single or shared parent. This can include matters of child maintenance, contact with children after a family breakdown, employment issues, education, welfare benefits, housing and debt
- Shelter offers local teams who provide face to face advice, a telephone helpline and online chats for free free advice on a range of housing issues, including homelessness, eviction, tenancy agreements, repairs and housing benefits.
