Irena Osborne

Legal Aid for Family Law Matters

Boardman, Hawkins & Osborne LLP

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.

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 (http://www.legislation.gov.uk/ukpga/2012/10/contents/enacted), 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 (http://www.legislation.gov.uk/uksi/2012/3098/regulation/33/made).  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 https://www.gov.uk/check-legal-aid

We will now look at the three parts of the eligibility test in turn.

Merits assessment

Your solicitor 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 – The solicitor 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 – your solicitor 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 – your solicitor 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.

There is one more issue that your solicitor will consider that determine that application for legal aid could be made 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 be required to satisfy the financial eligibility test. 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 checking financial eligibility and this can be checked through the following website https://legalaidlearning.justice.gov.uk/ – you will need to click on “spreadsheet tool” and complete the spreadsheet. 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.

Before we look at capital and income test in more detail it is worth considering the resources available to you that will be assessed.

As well as your own resources, the resources of your partner will also need to be taken into account if you are not separated from them.

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.

What is considered capital?

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.

This 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
  6. value of second and holiday homes
  7. value of timeshares
  8. any monies owed to you
  9. interest in land
  10. interest in trust fund

This is a non-exhaustive list and full detail of the rules can be found at: https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/757026/Guide_to_determining_certificated_work.pdf

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 etc.
  5. Evidence of income from trust funds or any other source  i.e. private pension , savings and investments
  6. Evidence of rent / lodgings received
  7. Evidence of payments received by way of spousal or child maintenance
  8. 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:

  1. Letters https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/700684/third-party-financial-support-pro-forma.docx 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 your solicitor.

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
  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 (IS, income based JSA, income related ESA, guaranteed pension credit and UC) both capital and income threshold will need to be met.

If you are in receipt of a passporting benefit then only capital threshold will be calculated as you will be passported through the income part of the test.

The current thresholds for eligibility for family law are as follows:

  1. You must have no more than £8000.00 available to you by way of capital
  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.

You do not have to get evidence before talking to us, but evidence will be needed before we can decide whether an application for legal aid can be made.

What counts as domestic abuse for legal aid

You or your children must have been victims of either:

  1. domestic abuse or violence OR
  2. 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” (https://www.gov.uk/government/publications/domestic-violence-and-child-abuseoffences)

Evidence of domestic abuse/violence (https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/672143/evidence-requirements-private-family-law-matters-guidance-version-8.pdf)

Arrest for a relevant domestic violence offence

The evidence should name the opponent in your case, as either under investigation or charged with the domestic violence offence either against you or against a person with whom the opponent was/is in a family relationship.

Document could be one of the following (examples) :

  1. A copy of the bail sheet from the police
  2. Formal written confirmation on police or CPS (or equivalent) or Witness Care Unit letterhead or from a pnn.police.uk email address
  3. Newspaper clippings about the arrest

The document will have to confirm:

  1. The opponent in your case is named as perpetrator
  2. Name of victim who is or was in a family relationship with the perpetrator
  3. The opponent has been arrested for a relevant domestic violence offence

Police caution

The evidence may be that the opponent in your case was cautioned for a relevant domestic violence offence against your or another person with whom the opponent in your case is or was in a family relationship.

Document could be one of the following (examples):

  1. A copy of the caution sheet from the police
  2. Formal written confirmation on police or CPS (or equivalent) or Witness Care Unit letterhead or from a pnn.police.uk email address

The document must confirm:

  1. Name of victim (where named) who is or was in a family relationship with the person cautioned
  2. The opponent in your case is named as the person cautioned
  3. Caution must be for the relevant domestic violence offence

Ongoing criminal proceedings

The evidence should name the person charged with the offence who must be the other party in the case. It must also show that the opponent in your case has been formally charged with a relevant domestic violence offence against your or another person with whom the opponent your case is or was in a family relationship.

Document could be one of the following (examples):

  1. A copy of the charge sheet from the police
  2. A document from the court confirming that the case has been listed
  3. Formal written confirmation on police or CPS (or equivalent) or Witness Care Unit letterhead or from a pnn.police.uk email address
  4. Newspaper clippings about the case

The document must confirm:

  1. The opponent in your case is named as perpetrator
  2. Name of victim (where named) who is or was in a family relationship with the perpetrator
  3. The criminal proceedings are for the relevant domestic violence offence

A conviction for a relevant domestic violence offence

The evidence should name the opponent in your case and confirm that they have been convicted with the relevant domestic violence offence against your or another person with whom your opponent is/ was in a family relationship.

Evidence checklist (examples):

  1. Memorandum of Conviction (Magistrates Court) or Certificate of Conviction (Crown Court)
  2. Formal written confirmation on Police or CPS (or equivalent) or Witness Care Unit letterhead or from a pnn.police.uk email address
  3. Newspaper clippings about the case

Required information:

  1. Respondent named as the person convicted
  2. Name of victim (where named) who is / was in a family relationship with the perpetrator
  3. Relevant domestic violence offence

Court order binding over the opponent in your case in connection with a relevant domestic violence offence

The evidence should name the opponent in your case as a person who accepted the bind over for a relevant domestic violence offence against your or another person with whom the opponent in your case is or was in a family relationship.

Evidence checklist examples:

  1. Formal document from Court
  2. Formal written confirmation on Police or CPS (or equivalent) or Witness Care Unit letterhead or from a pnn.police.uk email address

Required information:

  1. The opponent in your case is named as the person bound over
  2. Name of victim (where named) who is or was in a family relationship with the opponent in your case
  3. Relevant domestic violence offence

Domestic violence protection notice (DVPN

The evidence may be that the opponent in your case was issued with a DVPN in relation to your or another person with whom the opponent in your case is or was in a family relationship.

Evidence checklist

  1. Formal written confirmation on police or CPS (or equivalent) or Witness Care Unit letterhead or from a pnn.police.uk email address
  2. A copy of the DVPN from the police
  3. Court document detailing a DVPN

Required information:

  1. Name of the protected party – this could be you or another person who is or was in a family relationship with the opponent in your case
  2. The opponent in your case is named as the person against whom the DVPN was made

Protective injunctions / restraining orders

The evidence must name the opponent in your case as the person against whom the injunction/restraining order was made and must name the protected party who must be your or another person who is or was in a family relationship with the opponent in your case.

Document must be:

  1. Court document detailing a relevant protective injunction / restraining order
  2. A document from the Police CPS (or equivalent) or Witness Care Unit showing that a relevant protective injunction / restraining order has been made

Required information:

  1. Name of the protected party who is either you or another person who is or was in a family relationship with the opponent in your case
  2. Respondent named as the person against whom the protective injunction / restraining order was made

Undertaking

The undertaking must be given by the opponent in your case, it must be given in relation to you or  another person with whom the opponent in your case is or was in a family relationship. It is important to note that there must not have been any relevant cross-undertaking related to domestic violence given.

Evidence checklist examples:

  1. General Form of Undertaking (currently N117)
  2. Any other Court document

Required information:

  1. The opponent in your case provided the undertaking
  2. Name of person given the undertaking who must either be you or someone who is or was in a family relationship with the opponent in your case
  3. Undertaking is under appropriate section/Act- in England and Wales under section 46 or 63E of the Family Law Act 1996(1)
  4. A relevant cross undertaking has not been given by you

Fact finding

This evidence will be in the form of a judgement or Court document detailing specific findings made against opponent in your case. The finding of fact may be in relation to you or to another person with whom the opponent in your case is, or was, in a family relationship.

Evidence checklist (exhaustive):

  1. Court document

Required information:

  1. Name of victim who is either you or a person with whom the opponent in your case is or was in a family relationship
  2. The opponent in your case is named as perpetrator

Expert report produced as evidence for court or tribunal

This evidence must be in the form of an expert report (including CAFCASS report) produced as evidence for the court or tribunal proceedings in the United Kingdom, confirming that you or another person with whom the opponent in your case is or was in a family relationship with, has been assessed as being, or at risk of being a victim of domestic violence by the opponent in your case.

Document must be (exhaustive):

  1. An expert report produced as evidence in proceedings in the United Kingdom for the benefit of a court or tribunal confirming that an individual who is or was in a family relationship with the opponent in your case, was assessed as being, or at risk of being, a victim of domestic violence

Required information:

  1. The name of the perpetrator
  2. Name of the victim who is or was in a family relationship with the perpetrator
  3. Name of expert and relevant experience and qualifications
  4. Confirmation that individual is or was at risk of being a victim of domestic violence.

Letter or report from an Appropriate Health Professional

A letter or report from an appropriate health professional confirming that that professional, or another appropriate health professional has examined you in person; and in the reasonable professional judgement of the author or the appropriate examining health professional you have, or have had, injuries or a condition consistent with being a victim of domestic violence. The perpetrator does not need to be named.

Document must be (exhaustive):

  1. A letter from an appropriate health professional on letterhead; or
  2. An email including either: General Medical Council (GMC) reference number; or Nursing and Midwifery Council (NMC) Pin number or A Dentist General Council (DGC) registration number or Health and Care Professions Council registration number

Required information:

  1. You are named as victim
  2. Confirmation that you were examined in person
  3. The injuries or condition were consistent with those of a victim of domestic violence

An Appropriate Health Professional referral to a domestic violence support service

The letter or report must be provided by the appropriate health professional that made the referral, the person to whom the referral was made (e.g. the domestic violence support organisation) or a health professional that has access to the medical records for you.  The evidence must demonstrate that the referral was made to an organisation that provides specialist domestic violence support and assistance for victims of, or those at risk of, domestic violence.

Document must be:

  1. Letter or report from domestic violence support service on letterhead; or
  2. Email from domestic violence support service, identifying which domestic violence support service it is from; or
  3. Letter or report from an appropriate health professional on letterhead; or
  4. Email from an appropriate health professional identifying which organisation it is from

Evidence Requirements:

  1. You are named as victim
  2. Referral is from an appropriate health professional
  3. Referral is to organisation that provides specialist support or assistance for victims of, or those at risk of, domestic violence

Multi agency risk assessment conference (or other suitable local safeguarding forum)

A letter from any person who is a member of MARAC or other suitable local safeguarding forum confirming that you, or a person with whom you are in a family relationship, is or has been at risk of harm from domestic violence by the opponent in your case.

Document must be (examples):

  1. Letter from any person who is either a member of MARAC or other suitable local safeguarding forum
  2. Report from any person who is either a member of MARAC or other suitable local safeguarding forum
  3. Email from any person who is a member of MARAC or other suitable local safeguarding forum identifying which organisation it is from
  4. Minutes of MARAC or other suitable local safeguarding forum

Evidence Requirements:

  1. Name of victim who must be you or a person with whom you are in a family relationship
  2. The opponent in your case is named as perpetrator

A letter from an independent domestic violence advisor/advocate (IDVA) confirming that they are providing support to you (

Document must be:

  1. Confirmation on letterhead from an IDVA that they are providing support to you.
  2. Email from an IDVA that they have or are providing support to you.

Required information:

  1. You are named as victim

A letter from an independent sexual violence advisor confirming that they are providing support to you relating to sexual violence by the opponent in your case

Document must be:

  1. Confirmation on letterhead from an ISVA that they have or are providing support to you relating to sexual violence by the opponent in your case
  2. Email from an ISVA that they have or are providing support to your client.

Required information:

  1. You are named as victim (where possible)
  2. Opponent in your case is named as perpetrator

Letter from a local authority or housing association

The evidence must include a statement from the officer confirming that in their reasonable professional judgement you or an individual with whom the opponent in your case is or was in a family relationship, is or has been at risk of being a victim of domestic violence by the opponent in your case. The letter must also include a description of the specific matters the officer has relied upon to support their judgement; and the support that they have provided to the individual who is, or is at risk of being a victim of domestic violence. The letter must be on letter headed paper from the relevant local authority or housing association or from an official email address. The support that is provided may be a decision reached, for example, to allocate the individual as priority need for social housing because they were or are at risk of domestic violence or to exempt them from local connection rules. 

Document must be:

  1. A letter on letterheaded paper or from an official email address from either an officer employed by a local authority or a housing association in England and Wales as defined in (or their equivalent in Scotland and Northern Ireland).

Required information:

  1. Name of victim who is or was in a family relationship with the opponent in your case
  2. The opponent in your case is named as perpetrator
  3. Name of officer and their department
  4. A statement from the officer that in their reasonable professional judgement the individual named as the victim, is or is at risk of being a victim of domestic violence
  5. A description of specific matters the officer relied on to support their judgement
  6. A description of the support or the decision reached that the officer provided to the individual named as the victim

Letter from organisation providing domestic violence support services

The regulations set out several requirements that the letter must meet to be accepted as evidence. If all the requirements are not met then the application will be refused. These requirements also cover a letter from a Refuge that a client has been admitted for the purposes of providing accommodation to a victim of domestic violence.

The evidence must include a statement from the author confirming that in their reasonable professional judgement, you were, or are at risk of being a victim of domestic violence. It must also include a description of both the specific matters the author has relied upon to support their judgement and the support that they have provided and a statement of reasons as to why you  needed the support from organisation or charity.

You may find it useful to use the template letters which can be found on the www.gov.uk website here: https://www.gov.uk/government/collections/sample-letters-to-getevidence-of-domestic-violence

Document must be:

  1. A letter on letterheaded paper or the organisation’s email address from an organisation that provides domestic violence support services confirming that they have provided support to your client and that they are, or are at risk of domestic violence.

Required information:

  1. You are named as victim
  2. Name of organisation
  3. A statement from the author of the letter confirming that in their reasonable professional judgement you are or are at risk of being a victim of domestic violence.
  4. A description of specific matters the author relied on to support their judgement
  5. A description of the support that the author provided to you

Domestic violence support organisation refusal of admission to a refuge

The evidence must state the date that either you, or another individual who is or was in a family relationship with the opponent in your case, sought refuge but was refused entry. The admission to a refuge must be sought because of allegations of domestic violence/abuse  by the opponent in your case. There are many different reasons why a person may have been refused admission such as their immigration status, or they have complex mental health needs that cannot be met by the refuge or the refuge is situated too close to the perpetrator’s address.

Document must be:

  1. Letter or report from refuge or domestic violence support organisation on letterhead
  2. Email from refuge or domestic violence support organisation, identifying which domestic violence support organisation it is from.

Required information:

  1. Name of perpetrator
  2. Name of victim who is or was in a family relationship with the perpetrator
  3. The individual sought admission to the refuge due to allegations of domestic violence by the perpetrator
  4. The date admission to the refuge refused

A letter from a public authority

The letter must be on letterhead or, where emailed, evidence must clearly identify the name and details of the public authority. It should confirm that either you or an individual who was or is in a family relationship with the opponent in your case was assessed as being or at risk of being a victim of domestic violence. The evidence should also include the name of the individual who is, or at risk of being a victim of domestic violence and the name of the perpetrator.  A copy of the assessment by the public authority will be sufficient evidence such as a child and family assessment completed by children’s services. It may not be a formal assessment, for example it could be a pre-proceedings letter.

Document must be:

  1. A letter on letter headed paper or, an email, or a copy of a report from a public authority confirming that an individual who is or was in a family relationship with the perpetrator was assessed as being, or at risk of being a victim of domestic violence by the perpetrator.

Required information:

  1. Victim was in a family relationship with the perpetrator who is the opponent in your case
  2. Respondent named as perpetrator
  3. Name of public authority

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Articles by Irena Osborne