Funding options for legal services - Eligibility criteria fo...

Learning Outcomes

This article outlines the eligibility criteria for criminal and civil legal aid in England and Wales, including:

• Financial means tests and merits tests
• Scope of legal aid case types
• Practical application of eligibility rules
• Controlled work and licensed work in civil legal aid
• The interests of justice test in criminal cases
• Client contributions and the statutory charge
• Exceptional case funding and rights protection
• Preparation for SQE1-style questions
• Advice on entitlement to public funding

SQE1 Syllabus

For SQE1, you are required to understand the funding options for legal services, particularly the eligibility criteria for criminal and civil legal aid, with a focus on the following syllabus points:

• the financial means and merits tests for civil legal aid
• the interests of justice test and means assessment for criminal legal aid
• which types of cases are within scope for legal aid
• how to apply eligibility criteria to client scenarios
• the practical implications of legal aid decisions for clients and solicitors
• the statutory charge and when client contributions apply
• exceptional case funding (ECF) where refusal would breach rights

Test Your Knowledge

Attempt these questions before reading this article. If you find some difficult or cannot remember the answers, remember to look more closely at that area during your revision.

1. What are the two main eligibility tests for civil legal aid?
2. Which test determines whether a defendant in criminal proceedings should receive legal aid?
3. True or false? All criminal cases in the Crown Court automatically satisfy the interests of justice test for legal aid.
4. What is the capital limit for civil legal aid eligibility?
5. Name two types of civil cases that are generally within scope for legal aid.

Introduction

Legal aid provides public funding for legal advice and representation to individuals who cannot afford to pay privately. In England and Wales, legal aid is governed primarily by the Legal Aid, Sentencing and Punishment of Offenders Act 2012 (LASPO) and administered by the Legal Aid Agency. For SQE1, you must be able to explain the eligibility criteria for both criminal and civil legal aid, including the financial means and merits tests, and apply these rules to practical scenarios.

Key Term: Legal Aid Agency (LAA)
The executive agency of the Ministry of Justice responsible for administering legal aid, contracting with providers, and assessing applications against statutory criteria.

Key Term: LASPO
The Legal Aid, Sentencing and Punishment of Offenders Act 2012 sets the framework for civil and criminal legal aid, including scope and eligibility tests.

Civil Legal Aid: Eligibility Criteria

Civil legal aid helps individuals involved in non-criminal disputes. To qualify, an applicant must satisfy both a means test (financial eligibility) and a merits test (case assessment). Additionally, the case must be within the scope of legal aid.

Key Term: controlled work
Standardised civil legal aid services where providers can assess eligibility and start work under delegated authority (e.g., Legal Help and Help at Court).

Key Term: licensed work
Civil legal aid services requiring an LAA certificate following an application (e.g., Legal Representation, investigative or full certificates).

Scope of Civil Legal Aid

Not all civil cases are eligible for legal aid. Legal aid is generally available for:

• cases involving risk of homelessness (e.g., possession proceedings)
• family law cases involving domestic abuse or child protection
• discrimination claims
• certain immigration and asylum matters
• community care cases
• judicial review against public bodies
• inquests in limited circumstances (e.g., wider public interest or exceptional funding)
• mental health and mental capacity matters
• special educational needs (SEN) issues
• environmental pollution in limited situations

Key Term: scope of legal aid
The range of case types for which legal aid is available, as specified in LASPO and related regulations.

Some categories remain tightly defined. For example, clinical negligence is within scope only in specific circumstances (e.g., severe neurological injury to infants), and most private family law matters are out of scope unless domestic abuse evidence thresholds and case type criteria are met. Judicial review remains within scope where the public law challenge plausibly raises merits and benefit criteria.

Financial Means Test

Applicants must pass a financial assessment covering both income and capital.

Key Term: means test
An assessment of an applicant’s income and capital to determine financial eligibility for legal aid.

• Income: Gross monthly income must not exceed a set threshold (currently £2,657). If gross income is below this, disposable income is calculated by deducting allowable expenses (e.g., tax, housing costs, childcare) from gross income. Disposable income must not exceed £733 per month.
• Capital: The applicant’s capital (savings, investments, property, etc.) must not exceed £8,000 (or £3,000 for certain immigration cases). Some assets, such as the main home (subject to rules on equity disregards and whether the case concerns preservation of the home), may be partly disregarded.

Key Term: capital limit
The maximum amount of savings and assets an applicant can have to qualify for legal aid.

Applicants in receipt of certain means-tested benefits (e.g., Universal Credit, Income Support) are passported through the income test but must still satisfy the capital test. Where relevant, a partner’s resources are aggregated, and allowances are applied for dependants and essential expenditure before determining disposable income.

Merits Test

The merits test assesses whether the case is strong enough and justifies public funding.

Key Term: merits test
An assessment of the legal merits and cost-effectiveness of a case to determine eligibility for civil legal aid.

Key elements include:

• Prospects of Success: The case must generally have at least a 50% chance of success. “Borderline” or “poor” prospects are rarely funded unless a specific category (e.g., public interest judicial review) justifies it.
• Cost–Benefit: The likely benefit to the client must justify the likely cost to the Legal Aid Agency. In monetary claims, damages likely to be recovered should outweigh projected costs; in non-monetary relief (e.g., injunctions), qualitative benefits are assessed against costs.
• Reasonable Client Test: In non-monetary cases, would a reasonable privately paying client pursue the case?

Key Term: reasonable privately paying client test
The merits standard asking whether a reasonable person funding the case themselves would proceed, given the likely benefits and the costs.

• Alternative Funding: Legal aid may be refused if other funding is available (e.g., legal expenses insurance, conditional fee agreements).

Key Term: sufficient benefit test
The civil standard applied to controlled work (Legal Help and Help at Court) requiring enough benefit to justify assistance in the client’s circumstances.

Key Term: statutory charge
The right of the LAA to recover legal costs from property or money preserved or recovered for a legally aided client, after taking into account any costs orders and contributions.

The merits test is applied differently to controlled work (sufficient benefit) and licensed work (prospects and cost–benefit). Providers should record the assessment clearly (e.g., why relief would materially improve housing security or health outcomes), as audits may review the justification for controlled work starts.

Forms of Civil Services and Delegated Functions

Civil legal aid falls into two broad categories—controlled work and licensed work—with three common forms of civil services:

• Legal Help (controlled work): Basic advice and limited steps (letters, obtaining information). No issuing proceedings. Providers apply delegated functions to start this where eligible, ensuring sufficient benefit is demonstrated.
• Help at Court (controlled work): Advice and assistance (including advocacy) in relation to a specific hearing, typically where urgent representation is required (e.g., possession list duty).
• Legal Representation (licensed work): For parties to proceedings or those contemplating them. Investigative representation covers case assessment; full representation covers conduct of proceedings including advocacy. Certificates may be limited and require amendments and costs increases as cases develop.

Urgent matters (e.g., imminent homelessness or domestic abuse) may proceed under delegated emergency functions pending full certificate approval, provided providers comply with LAA guidance on emergency representation.

Key Term: licensed work
Work requiring an LAA certificate, authorising investigative or full representation subject to scope, means, merits, and certificate limitations.

Worked Example 1.1

A client facing eviction applies for civil legal aid. She receives Universal Credit and has £2,000 in savings. The solicitor assesses her case as having a good chance of success. Is she eligible?

Answer:
Yes. She is within scope (risk of homelessness), passes the means test (on benefits, capital below £8,000), and the case has merits. She qualifies for civil legal aid.

Statutory Charge and Client Contributions

The statutory charge can apply where a legally aided client gains or keeps property or money in the case. The LAA first sets off any costs recovered from the other side and any contributions paid, then applies the statutory charge to the value preserved or recovered to cover any shortfall. Where the property recovered is the client’s home, enforcement may be postponed, with a charge registered and simple interest accruing until sale. The charge can come as a surprise if not explained at the outset and revisited periodically.

For licensed work, if disposable income or capital exceeds lower thresholds, the LAA may require client contributions (e.g., monthly income contribution or a capital contribution), assessed at the point of certificate grant and adjusted if circumstances change.

Worked Example 1.2

A tenant receives full representation, wins a disrepair claim, and is awarded £6,000 damages with a costs order for most of her legal costs. Her certificate shows total funded costs of £8,500. After the opponent pays £7,000 towards her costs, will the statutory charge apply?

Answer:
Likely yes, for the shortfall of £1,500 (subject to any contribution already made). The LAA first sets off costs recovered and any contributions; any remaining funded costs may be recovered from the damages under the statutory charge.

Criminal Legal Aid: Eligibility Criteria

Criminal legal aid ensures that defendants in criminal proceedings have access to legal advice and representation. Eligibility is determined by two main tests: the interests of justice test and a means test.

Interests of Justice Test

This test considers whether it is in the interests of justice for the defendant to receive legal aid. Factors include:

• risk of imprisonment or loss of liberty
• seriousness or complexity of the case
• inability of the defendant to understand proceedings or present their own case
• need to trace, interview, or cross-examine witnesses
• risk of damage to reputation or livelihood

Key Term: interests of justice test
A test applied in criminal cases to determine whether legal aid is justified based on the seriousness and complexity of the case and the defendant’s circumstances.

Cases in the Crown Court automatically satisfy the interests of justice test.

Where the test is not automatically satisfied (e.g., a summary-only offence with no realistic custodial risk), providers should consider whether any factor nonetheless makes representation necessary (e.g., complex expert evidence or vulnerability). Under-18s automatically satisfy the interests of justice test for all criminal proceedings.

Means Test

The means test for criminal legal aid differs between the Magistrates’ Court and the Crown Court.

• Magistrates’ Court: Applicants with a gross annual income below a set threshold (currently £12,475) are eligible. Those above £22,325 are ineligible. Applicants in between may be subject to a full means test.
• Crown Court: All defendants are eligible for legal aid, but those with higher income or capital may be required to pay contributions.

Key Term: adjusted income
A figure derived from gross annual income after allowances reflecting family circumstances, used to decide whether a full means test is required.

Applicants under 18 or in receipt of certain benefits automatically pass the means test. In Crown Court cases, if disposable income is above a threshold, an income contribution order may be made for the duration of the case; if capital exceeds a set level, a capital contribution may be required post-conviction where appropriate.

Worked Example 1.3

A 19-year-old defendant charged with assault in the Magistrates’ Court has a part-time job earning £10,000 per year and no savings. The case is straightforward, but a conviction could result in a custodial sentence. Is he eligible for criminal legal aid?

Answer:
Yes. He is under the income threshold, and the risk of imprisonment means the interests of justice test is satisfied. He qualifies for legal aid.

Police Station Advice and Duty Schemes

Advice at the police station is free for anyone under arrest or attending voluntarily. Providers claim under the Police Station Advice and Assistance Scheme. Duty solicitors operate rotas for Magistrates’ Courts and police stations. In court, the duty solicitor provides advice and representation to unrepresented defendants; under duty schemes, solicitors cannot refuse instructions because the work would be unremunerative.

Key Term: representation order
The order granting criminal legal aid for court proceedings following application and satisfaction of the interests of justice and means tests.

Worked Example 1.4

A defendant appears in the Crown Court for a serious offence. He satisfies the interests of justice test automatically. His disposable income triggers an income contribution order. Can he still obtain legal aid and what are the implications?

Answer:
Yes. Crown Court cases automatically satisfy the interests of justice. Legal aid will be granted, but he may have to make income (and, if relevant, capital) contributions towards his defence costs in line with the assessment.

Applying the Criteria: Practical Considerations

• Evidence: Applicants must provide documentary evidence of income, capital, and benefits. Providers should retain clear records of means assessments and merits reasoning (e.g., why a hearing requires Help at Court, why prospects exceed 50%).
• Contributions: In some cases, clients may be required to pay contributions towards their legal costs (civil licensed work; criminal Crown Court representation).
• Exceptional Case Funding (ECF): Legal aid may be granted in exceptional cases to prevent a breach of human rights or enforceable EU rights, even if the case is otherwise out of scope. ECF is fact-sensitive: typical examples include complex private family disputes involving serious safeguarding risks, or civil matters where the applicant’s vulnerabilities and the complexity make self-representation unrealistic and risk an unfair process.

Key Term: exceptional case funding (ECF)
Discretionary legal aid funding under LASPO where refusal would breach a person’s rights (e.g., under the Human Rights Act) or where funding is otherwise necessary to ensure fairness.

• Solicitors’ Duties and LAA Contract: Firms must hold an LAA contract for relevant categories to provide legal aid. Providers are audited against contract and regulatory standards. A solicitor who identifies potential eligibility should advise accordingly and may need to signpost to a legal aid provider if their own firm does not hold a relevant contract.

Key Term: controlled work
Standard civil legal aid work providers can start under delegated functions (e.g., Legal Help and Help at Court), subject to scope, means, and sufficient benefit.

Key Term: licensed work
Work requiring a certificate (e.g., investigative/full representation). Applications must demonstrate scope, means, merits, and proportionality of costs.

Professional duties include notifying the LAA if a publicly funded client acts unreasonably (e.g., rejecting a realistic settlement without good reason) or provides inaccurate information. This duty may override confidentiality to the extent required by the contract and regulations.

Worked Example 1.5

A vulnerable litigant in a private family dispute seeks representation in contested child arrangements. The matter is out of scope, but she has significant mental health issues and cannot participate effectively without assistance. Is ECF potentially available?

Answer:
Potentially yes. If refusing funding would likely breach her right to a fair hearing given the complexity and her vulnerabilities, an ECF application with supporting medical and case-complexity evidence may be justified.

Exam Warning

In SQE1, read scenarios carefully to identify whether the case is within scope for legal aid and which eligibility tests apply. Do not assume all cases are covered.

Revision Tip

When revising, focus on the step-by-step process: (1) Is the case within scope? (2) Does the applicant pass the means test? (3) Does the case satisfy the merits/interests of justice test?

Key Point Checklist

This article has covered the following key knowledge points:

• Legal aid provides public funding for legal services to those who cannot afford to pay privately.
• Civil legal aid eligibility requires the case to be within scope, and the applicant to pass both a means test (income and capital limits) and a merits test.
• Civil controlled work requires a sufficient benefit; licensed work requires prospects of success and a cost–benefit assessment.
• The statutory charge may apply to property or money recovered or preserved; client contributions can be required for licensed work.
• Criminal legal aid eligibility is based on the interests of justice test and a means test, with automatic eligibility in some cases.
• Police station advice is free irrespective of means; duty solicitors cannot refuse unremunerative instructions.
• Applicants must provide evidence of their financial circumstances and case merits.
• Exceptional case funding may be granted where refusal would likely breach rights or fairness.
• Not all cases are eligible for legal aid; scope is limited by statute and regulations.

Key Terms and Concepts

• scope of legal aid
• means test
• capital limit
• merits test
• interests of justice test
• Legal Aid Agency (LAA)
• LASPO
• controlled work
• licensed work
• sufficient benefit test
• reasonable privately paying client test
• statutory charge
• representation order
• adjusted income
• exceptional case funding (ECF)