Funding options for legal services - Eligibility criteria for criminal and civil legal aid

Learning Outcomes

After reading this article, you will be able to identify and explain the eligibility criteria for both criminal and civil legal aid in England and Wales. You will understand the financial means and merits tests, know which types of cases are within scope, and apply the relevant rules to practical scenarios. This knowledge will enable you to answer SQE1-style questions on legal aid funding options and advise clients accurately on their entitlement to public funding.

SQE1 Syllabus

For SQE1, you are required to understand the funding options for legal services, with particular focus on the eligibility criteria for criminal and civil legal aid. In your revision, pay close attention to:

  • 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

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 civil and criminal legal aid, including the financial means and merits tests, and apply these rules to practical scenarios.

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.

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

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

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 (up to a limit), may be 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.

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.
  • Cost–Benefit: The likely benefit to the client must justify the likely cost to the Legal Aid Agency.
  • Reasonable Client Test: In non-monetary cases, would a reasonable privately paying client pursue the case?
  • Alternative Funding: Legal aid may be refused if other funding is available (e.g., legal expenses insurance, conditional fee agreement).

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.

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.

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.

Applicants under 18 or in receipt of certain benefits automatically pass the means test.

Worked Example 1.2

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.

Applying the Criteria: Practical Considerations

  • Evidence: Applicants must provide documentary evidence of income, capital, and benefits.
  • Contributions: In some cases, clients may be required to pay contributions towards their legal costs.
  • Exceptional Case Funding: Legal aid may be granted in exceptional cases to prevent a breach of human rights, even if the case is otherwise out of scope.

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.
  • Criminal legal aid eligibility is based on the interests of justice test and a means test, with automatic eligibility in some cases.
  • Applicants must provide evidence of their financial circumstances and case merits.
  • Not all cases are eligible for legal aid; scope is limited by statute and regulations.
  • Legal aid may require client contributions or be refused if alternative funding is available.

Key Terms and Concepts

  • scope of legal aid
  • means test
  • capital limit
  • merits test
  • interests of justice test
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Pleased to share that I have successfully passed the SQE1 exam on 1st attempt. With SQE2 exempted, I’m now one step closer to getting enrolled as a Solicitor of England and Wales! Would like to thank my seniors, colleagues, mentors and friends for all the support during this grueling journey. This is one of the most difficult bar exams in the world to undertake, especially alongside a full time job! So happy to help out any aspirant who may be reading this message! I had prepared from the University of Law SQE Manuals and the AI powered MCQ bank from PastPaperHero.

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Senior Associate at Trilegal