Legal Aid Flashcards
What is the main thing a firm must have in place in order to be able to carry out legal aid services?
A contract with the Legal Aid Agency, which covers the type of work the firm is offering (eg criminal, immigration work etc).
Does having a contract with the LLA obligate firms to take legal aid cases?
No.
They still have the right to refuse clients taking an objective view of the case in its individual circumstances.
What is the LLA audit?
Firms which have contracts with the LLA are subject to audits annually by the LLA.
This allows the LLA to ensure that the firms files are being run properly and that the firm’s case management systems are working correctly.
What should a solicitor do if they are refusing to act for a client on a legal aid basis?
If the client is eligible for legal aid and the solicitor refuses to act, the solicitor should point the client in the direction of other legal advice and advise them that they are eligible for legal aid.
Explain the additional duties a solicitor has to the LLA when acting on a legal aid basis (in addition to their professional obligations).
Solicitor must inform the LLA if the client acts unreasonably in refusing a settlement offer.
Solicitor must also inform the court and other parties that the client is being covered by legal aid.
Solicitor must inform the LLA if the client has given misleading or inaccurate info to the LLA.
Does the solicitors duty to inform the LLA override the professional obligation to client confidentiality?
Yes.
What are the two categories of civil legal aid?
Controlled work and licensed work.
Generally speaking, for controlled work the solicitor determines the client’s eligibility, whereas licensed work is authorised by the LLA on a case by case basis.
Note that specific rules apply to immigration and family cases.
What is help at court funding?
funding which covers advice and assistance (including advocacy).
Work which solcitiro carries out must be in relation to particular hearing rathe than representation in the case generally.
Help at court is controlled work.
What is legal help?
Covers solicitor giving basic advice and limited steps following on from that advice.
May involve drawing a letter or obtaining info from third party.
Does not extend to issuing court proceedings.
Legal help is controlled work.
Give a common example of help at court work.
Where client is subject to possession proceedings to which there is no defence, but client needs assistance putting forward arguments to the court (with the aim of delaying eviction).
What is legal representation legal aid work?
It is licensed work which usually needs to be verified by the LLA.
If application is successful to the LLA, they will issue a legal aid certificate.
Legal representation can be granted on investigative or full basis.
What is the investigative representation basis for civil legal aid work?
Covers solicitor’s work in assessing the strengths of the case.
What is the full representation basis for civil legal aid work?
full representation covers the issuing and conduct of the proceedings, including advocacy at the final hearing.
What limitations might the LLA impose on the legal aid certificate they grant?
Limitations which restrict the scope of the representation which can be given and/or sets a max amount that it will pay for legal fees.
If case turns out to require more work, the solicitor must apply for the certificate to be amended and/or for an increase of the costs limitation to cover the additional work.
What is the emergency basis for legal aid?
Legal representation can be obtained on the emergency basis where client is in urgent need of legal advice and assistance.
Eg if client is facing imminent homelessness or is under threat of domestic violence.
Explain the scope of civil legal aid.
Legal aid is only available for a case if specified under schedule 1, part 1 of the Legal Aid Sentencing and Punishment of Offenders Act 2012.
With limited exceptions, divorce, PI and family disputes about children are excluded from the scope.
Cases where legal aid is still available include those where client faces homelessness, family cases where client is the victim of domestic abuse, cases where client has been subject to discrimination, immigration cased and care proceedings.
Is legal aid still potential available for cases which fall outside the scope of legal aid?
Yes - it may be possible for legal aid to be obtained if circumstances are exceptional.
Effectively, legal iAd will be granted by the LLA if they are satisfied refusal would breach client’s human rights.
Is legal aid automatically available where a case falls within the legal aid scope?
No.
The case must also satisfy the merits test and the means test.
Explain the sufficient benefit test for civil legal aid (one o the two tests under the merits test).
Legal Help and Help at court are subject to the ‘sufficient benefit test’.
It will therefore only be available if there is sufficient benefit to the client, having regard to circumstances of the case (including the client’s personal circumstances).
What two tests does the merits test include?
The sufficient benefit test and the test of the cases’ prospect of success.
the client but also satisfy the general merits test or a specific merits test depending on the type of case.
Eg cases involving monetary claims, the merits test will look at costs involved in the car and balance that against the potential amount of damages which could be awarded.
In a non-monetary case, it will be assessed whether the cost outlay justify the benefits the client may be granted (such that a reasonable private paying client would proceed).
Explain the prospect of success test (as part of the merits test).
Legal representation will not be granted if prospects of success are judged to be less than 50%.
What is the reasonable privately paying client test?
where the LLA will ask whether the benefits which could be attained under the car warrant such a cost outlay, assessing in particular whether in the circumstances a reasonsable privately paying client would be prepared to proceed.
Explain the means test for civil legal aid.
Client only qualifies for civil legal aid if their capital and income (combined with resources of any partner) does not exceed certain limits.
Capital limit cannot exceed the limit.
If capital limit is not exceeded, income test considers clients gross income. If gross income is not exceeded, client will be eligible for some legal aid (how much will depend on whether they are deemed to be able to contribute at the end of the case, especially if awarded damages).
Summarise the merits test.
1) Is the case of a sufficient benefit (the sufficient benefit test)? - legal aid is only available to clients where they will receive a sufficient benefit in their individual circumstances; and
2) Prospects of success - does the case have more than a 50% chance of success?; and
3) Client must satisfy general merits test or specific merits test:
- if a monetary case, does the outlay warrant legal aid in comparison to the potential damages available; or
- if a non-monetary case, does the benefit to client warrant the outlay to the point that if a reasonable privately paying client was in the situation, would they be prepared to proceed (the reasonable paying client test).
