Legal Aid

Question 1

What is the main thing a firm must have in place in order to be able to carry out legal aid services?

Answer 1

A contract with the Legal Aid Agency, which covers the type of work the firm is offering (eg criminal, immigration work etc).

Question 2

Does having a contract with the LLA obligate firms to take legal aid cases?

Answer 2

No.

They still have the right to refuse clients taking an objective view of the case in its individual circumstances.

Question 3

What is the LLA audit?

Answer 3

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.

Question 4

What should a solicitor do if they are refusing to act for a client on a legal aid basis?

Answer 4

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.

Question 5

Explain the additional duties a solicitor has to the LLA when acting on a legal aid basis (in addition to their professional obligations).

Answer 5

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.

Question 6

Does the solicitors duty to inform the LLA override the professional obligation to client confidentiality?

Answer 6

Yes.

Question 7

What are the two categories of civil legal aid?

Answer 7

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.

Question 8

What is help at court funding?

Answer 8

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.

Question 8

What is legal help?

Answer 8

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.

Question 9

Give a common example of help at court work.

Answer 9

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).

Question 10

What is legal representation legal aid work?

Answer 10

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.

Question 11

What is the investigative representation basis for civil legal aid work?

Answer 11

Covers solicitor’s work in assessing the strengths of the case.

Question 12

What is the full representation basis for civil legal aid work?

Answer 12

full representation covers the issuing and conduct of the proceedings, including advocacy at the final hearing.

Question 13

What limitations might the LLA impose on the legal aid certificate they grant?

Answer 13

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.

Question 14

What is the emergency basis for legal aid?

Answer 14

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.

Question 15

Explain the scope of civil legal aid.

Answer 15

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.

Question 15

Is legal aid still potential available for cases which fall outside the scope of legal aid?

Answer 15

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.

Question 16

Is legal aid automatically available where a case falls within the legal aid scope?

Answer 16

No.

The case must also satisfy the merits test and the means test.

Question 17

Explain the sufficient benefit test for civil legal aid (one o the two tests under the merits test).

Answer 17

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).

Question 18

What two tests does the merits test include?

Answer 18

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).

Question 19

Explain the prospect of success test (as part of the merits test).

Answer 19

Legal representation will not be granted if prospects of success are judged to be less than 50%.

Question 20

What is the reasonable privately paying client test?

Answer 20

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.

Question 20

Explain the means test for civil legal aid.

Answer 20

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).

Question 20

Summarise the merits test.

Answer 20

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).

Question 21

Explain the income test, as part of the means test for civil legal aid.

Answer 21

Client’s gross income is first assessed.

If monthly income exceeds £2,657, client does not qualify for legal aid. If it is £2,657 or less, then disposable income will be assessed and client will only qualify where monthly disposable income is less than £733.

Question 21

Explain the capital limit test, as part of the means test for legal aid.

Answer 21

Capital limit for civil legal aid is 8k (3k for immigration cases). if client has capital of more than 8k, they don’t qualify and there is no need to consider their income position.

Question 22

Where client satisfies both the income and capital parts of the means test, are they automatically entitled to completely free legal aid?

Answer 22

No.

For licensed work (eg legal representation), if client’s disposable income is above £315, or capital is above £3,000, legal aid will be offered on the basis they make a contribution to the fees. If contribution is from income, this will be from monthly payments.

Question 23

Explain the statutory charge.

Answer 23

Where client is ordered to pay some of the money or property received from winning the case to repay legal costs.

Client must have been wholly or partly successful in the proceedings, or obtained a settlement out of court when they received money or kept property they otherwise would have lost.

For the statuary charge to apply, client will usually have been in receipt of Legal representation.

Question 24

How does the LLA recoup money paid on client’s behalf under the statuary charge?

Answer 24

1) it will first claim any money paid pursuant to a costs order made in favour of the client;

2) If shortfall remains, they will then retain any contribution paid by the client under the LLA offer.

3) If there is still shortfall, any money recovered or preserved in the proceedings will be applied to make up the shortfall.

Question 25

Explain the role of the solicitor in the facilitation of the collection of the statuary charge.

Answer 25

Solicitor is required to pass any money payable to the client under a court order or out of court settlement to the LLA.

Usually the statutory charge is payable immediately.

Solicitor must ensure the client is aware of the statutory charge and the implication of it.

Question 26

What is the procedure in assessing the income of client’s in receipt of welfare benefits (eg universal credit, job seekers allowance, income related employment etc)?

Answer 26

They automatically satisfy the income test but their capital must still be assessed.

Question 26

What happens where the retained property is the client’s residential home?

Answer 26

The LLA may postpone enforcement of the statutory charge.

If this is the case, statuary charge will be protected by registering the charge against the title of the property (and simple rate of interest is applied). fees are then recouped when the property is eventually sold.

Question 27

Explain who may not have to satisfy the means test in criminal proceedings.

Answer 27

Clients under 18 or those who receive welfare benefits are entitled to criminal legal aid without passing the means test.

Question 28

What is adjusted income for the means test in criminal proceedings?

Answer 28

Gross income which is then divided by a set figure according to partner and children circumstances.

Question 29

What is the full means teat for criminal legal aid?

Answer 29

Involves educating expenses (eg mortgage, rent etc) to determine client’s disposable income.

If less than 3,398 they are eligible in both courts. If not, they are not eligible in the magistrates but may be in the CC.

If more than 3,398 but less than 37,500, means test may determine they can pay some costs but not all. However this only applies in the CC.

Question 29

Explain the adjusted income thresholds for legibility of Ella aid in the magistrates court.

Answer 29

If adjusted income is £12,475 or less, client is eligible for a representation order in both magistrates and the crown court.

If more than 12,475 but less than 22,325, full means test will be applied for both courts.

if more than 22,325, they are not eligible in the magistrates, but are allowed a full means test if seeking representation in the crown court.