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Legal Aid for Family Law Matters

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Getting Help to Pay for Legal Costs

Irena Osborne

Legal aid is the use of public funds to help to pay for legal advice, family mediation and court representation. The Legal Aid Agency is in charge of providing legal aid in England and Wales.
 
When a client asks “will I get legal aid for my family case” they generally expect a “yes” or a “no” answer. The determination for legal aid eligibility is, unfortunately, far more complicated. The rules are scattered over many regulations, guidance documents, statue and statutory instruments. We hope that this article will give a quick overview of legal aid eligibility criteria and explain why so many questions need to be asked when you first call in to make an initial enquiry. It should be noted that the content of this article is up to date as of May 2019 and reliance on the information contained herein at any point in the future should be cautions indeed. 
 
Essentially there are two types of family cases for which legal aid is available: 
  1. Family cases for which legal aid is available (“In scope”) – which can be still means and merits tested, and 
  2. Family cases for which evidence pertaining to domestic abuse or child abuse is required (again, means and merits tested)
If your case and your circumstances do not fall within the two categories above, then no legal aid is available. 
 
Family cases that are in scope generally fall into two categories: 
  1. Proceedings which are non-means and non-merits tested. Those include applications made by the local authority  for care orders, supervision orders, child assessment orders and emergency protection or orders. This list is non-exhaustive. 
  2. The second group of proceedings that remain in scope of legal aid but require a client to pass means and merits test are proceedings for contact with a child in care, applications for discharge or variation of care or supervision orders, placement orders, recovery orders, adoption proceedings, wardship  proceedings, orders relating to the unlawful removal of children (abduction), orders and proceedings in relation to family homes and domestic abuse such as occupation orders, non-molestation orders and forced marriage protection orders and some EU proceedings relating to children and maintenance.  Again, the list of proceedings here is given as a guidance and not meant to be a complete list. 
It is worth noting that assistance with legal fees may be available to you for Mediation to resolve disputes about children and finances on relationship breakdown.
 
As it can be seen from the above list, the vast majority of family cases, such as divorce, disputes between separated parents in relation to children  and dispute regarding family finances do not fall into the above categories. In such cases you may be eligible for legal aid providing you are able to: 
  1. Pass merits test AND
  2. Evidence financial eligibility to legal aid AND
  3. Produce the required evidence that you (or the child of the family) suffered domestic abuse. 
In relation to evidence of domestic abuse, this is a tightly regulated area and acceptable evidence is very precisely defined by the Legal Aid Sentencing and Punishment of Offenders Act 2012, which has been in force since 1 April 2013. The evidence that is required for an application for legal aid in such matters is spelt out in the Civil Legal Aid (Procedure) Regulations 2012.  We will deal with these later on in this article. 
 

Eligibility criteria 

Legal Aid Agency produced an easy to use tool to check whether you may be eligible for legal aid. This can be found at www.gov.uk/check-legal-aid
 
We will now look at the three parts of the eligibility test in turn. 
 

Merits assessment 

We will ask you a number of questions to establish whether or not your case has merits to either bring or defend legal action and overall benefit of this action to you. The test can essentially be broken down into three parts and you will need to satisfy all three: 
 
  1. Prospects of success – We will have to be satisfied that your case has more than 50% chance of succeeding or that there is some other public benefit to you brining / defending legal action.
  2. Reasonable private paying client test – we will need to be satisfied that potential benefit to be gained from providing legal aid justifies the likely cost, such that a reasonable private paying individual would be prepared to start or continue the proceedings having regard to all circumstances of the case. 
  3. Proportionality test – we will have to be satisfied that the likely benefit of the proceedings to the individual and others satisfies the likely costs considering all circumstances of the case. 
Even if the above tests are not fully satisfied and that is the question of wider public interest – there is significant wider benefit to wider public or an identifiable class of individuals other than you. 
 

Calculating whether you are financially eligible for legal aid

Turning to the means part of your legal aid application, the documents that need to be provided are numerous and onerous. After all, you are asking the taxpayer to fund your (private) legal dispute and therefore it is right that the eligibility is established and evidenced.
 
You will have to prove that you pass income and capital test for legal aid eligibility. Both parts of the test must be satisfied and as you can imagine the rules for calculating income and capital are complicated and very specific. 
 
A good place to start is eligibility calculator, which can be found at civil-eligibility-calculator.justice.gov.uk.  We would suggest that you run through the calculation on the website and print out the results ready for your appointment. It will assist greatly and speed up the appointment time. 
 
Essentially when looking at financial eligibility, 3 main areas will be examined: –
  1. Calculating the capital available to you 
  2. Calculating income you receive each month and in particular the last month before the making of the application for legal aid 
  3. Considering deductions from income.
The separation must be considered permanent by at least one of you rather than simply being a physical separation owing to financial or practical reasons i.e. one of you being in prison, hospital, residential care etc. 
 
There are situations however where you may be living within the person who is not your partner. Such a situation arises most commonly when adult children live with their parents, or living with other family members. When someone is maintaining you or your partner or resources from that person are made available to you or your partner, then the resources (i.e. capital and income) of that person will need to be included in calculation. 
 
The regulations are clear in that every capital resource belonging to you on the date of application for legal aid must be included in the calculation. This includes capital derived from a bank loans or borrowing facilities and includes: 
  1. cash savings including money held in ISA accounts 
  2. any cash held in joint accounts (unless you are able to show that you do not have access to monies held in joint account) 
  3. items of exceptional value such as antiques, paintings, vintage cars, jewellery etc. (not that wedding, engagement and eternity rings are excluded) 
  4. cars worth more than £15,000.00 and bought within last 3 years should be declared 
  5. equity in the family home and value of second and holiday homes 
  6. value of timeshares 
  7. any monies owed to you 
  8. interest in land and in trust land
 

Income 

The evidence of your income will be required by the Legal Aid Agency and as a minimum the following documents should be provided by everyone: 
  1. 3 months bank statements for all of your bank accounts, including  (but not limited to)
    1. any accounts that you are signatory to, i.e. children’s savings accounts etc. 
    2. any joint accounts that you may have access to
    3. accounts that are in debt, or have £0 balances or have been inactive for periods of time. 
    4. ISA accounts 
    5. Mortgage offset accounts 
  2. Evidence of housing costs i.e. mortgage or rent payments 
  3. If you have childcare costs because you are working – evidence of this costs i.e. invoices from your childcare provider 
  4. Evidence of any other income i.e. rental income, lodgings received etc. 
  5. Evidence of income from trust funds or any other source  i.e. private pension, savings and investments 
  6. Evidence of payments received by way of spousal or child maintenance
  7. Evidence of any student loan or grant received 
If you are employed you should also provide:
  1. Wage slips covering the period of the last 3 months 
  2. Evidence of any benefit in kind received for the last 12 months i.e. company car, fuel allowance etc. 
If you are self-employed:
  1. Last year accounts as submitted to HMRC or copy of personal tax assessment 
  2. Copy of any business bank accounts 
If you are in receipt of benefits: 
  1. Letter from the benefits agency showing which benefit you are in receipt of, confirming whether the benefit is in payment and the nature of such benefit, including the amount of the benefit 
  2. If you are in receipt of Universal Credit – internet printout confirming the same

    If you receive financial assistance from anyone else: 

  3. Letters from friends and family setting out assistance they are providing to you 
This is a non-exhaustive list and if you have any other income or capital you should discuss this with us. 

Deductions 

When calculating eligibility for legal aid, some expenses and outgoings can be deducted from your income. You will need to provide evidence of these in order to be taken into account. 
The most common deductions are as follows: 
  1. Amounts of income tax and NI contributions paid 
  2. Employment expenses – as set amount of £45.00 will be deducted in making your calculation. No evidence is required for this. 
  3. Childcare expenses incurred because you are working (invoice will be required) 
  4. Housing costs (i.e. mortgage or rent) for your main home 
  5. Dependants’ allowances – the amounts for this are set 
  6. Maintenance payments actually made 
  7. Criminal legal aid contributions 
Sadly no deductions are made for general living expenses, household bills, council tax etc. 

Will I qualify? 

The threshold for eligibility for legal aid is very low. 
 
Unless you are in receipt of a passporting benefit, both capital and income threshold will need to be met. 
 
If you are in receipt of a passporting benefit (IS, income based JSA, income related ESA, guaranteed pension credit and UC) then only capital threshold will be calculated as you will be passported through the income part of the test. 
 
The current thresholds (May 2019) for eligibility for family law are as follows: 
  1. You must have no more than £8000.00 available to you by way of capital AND
  2. In relation to income:
    1. Your gross income must not exceed £2657.00 per month and 
    2. Your disposable income (gross income less deductions) must not exceed £733.00 per month. 

Domestic abuse or violence

As can be seen above, for some cases legal aid is only available if you are able to show that you or your children have been victims of domestic abuse or violence or financial control. 
Not every offence is considered relevant for the purposes of legal aid application. There is a prescribed list of “relevant domestic violence offences

Evidence of domestic abuse/violence

What do I do next? 

If you need assistance of a family lawyer and you think you may qualify for legal aid I would advise that in the first instance you consult Eligibility Calculator. This will give you an indication whether you may qualify financially. Then please look through the acceptable forms of domestic abuse evidence and if any of those apply to you ensure that you have the documentation ready. Once you are satisfied that you may qualify for legal aid, do get in touch(tel:  01235 425 500 and email: info@bholegal.co.uk) and one of us will speak with you in more detail about next steps. 

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