Legal Aid: Here is your complete guide to legal aid entitlement under family law.

What is Legal Aid?

‘Legal Aid is a payment from public funds paid, in cases of need, to help pay for legal advice or proceedings‘.

Introduction:

Since April 2013 Legal Aid has not been available for most family cases. The Legal Aid, scheme is now administered by the Legal Aid Agency, an executive agency of the Ministry of Justice.

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The scope of Legal Aid:

  • Why is Legal Aid important?
  • What does Legal Aid provide?
  • Types of family cases funded by Legal Aid
  • Domestic Violence
  • A Solicitors responsibility to their client
  • Types of funding
  • Eligibility
  • The statutory charge

Why is Legal Aid important?

Legal Aid provides assistance to those people who are otherwise unable to afford legal representation and access to the court.

Legal Aid’s role is crucial, as it provides fair and equal access to justice to those most at risk of being excluded from legal representation.

What does Legal Aid provide?

Legal Aid helps the individual with the costs of legal advice, and representation. If you are covered by Legal Aid you will be provided with:

  • Advice as to your rights and options,
  • Help with negotiations and paperwork,
  • Help if you have been accused of a crime including advice at the police station and,
  • Legal representation by either a solicitor or barrister to prepare your case, and speak on your behalf in court and some tribunals.

Types of cases funded by Legal Aid:

Legal Aid is not available for family cases unless the case is of a type specified under (LASPO 2012) as being within the scope of the Legal Aid scheme.

These are namely:

  1. Public law children proceedings;
  2. Cases involving the obtaining of protective injunctions, e.g. non-molestation orders,
  3. Occupation orders, forced marriage protection orders;
  4. Where a child under 18 is an applicant, respondent, or joined as a party to the

proceedings (Legal Aid is available to the child);

Other family cases for example, Specific Issue Order, Prohibited Steps Order, financial applications and divorce are outside the scope of Legal Aid unless you can demonstrate you have been a victim of or is at risk of domestic violence, or, in children cases, that the case is for the purpose of protecting a child who would otherwise be at risk of abuse.

Domestic Violence:

Legal Aid defines domestic violence as:

‘any incident, or pattern of incidents, of controlling, coercive or threatening behaviour, violence or abuse (whether psychological, physical, sexual, financial or emotional) between individuals who are associated with each other’.

In order to have your case funded by Legal Aid, you must be able to provide evidence of the violence. Only certain forms of evidence are acceptable for this purpose. These include:

  • A previous conviction for a domestic violence offence,
  • A protective injunction made in the last five years,
  • A report from a health professional that an examination within the last five years showed injuries/condition consistent with those of a victim of domestic violence. (Similar prescribed evidence is required to demonstrate that a child is at risk of abuse.)

A Solicitors responsibility to their client:

Where a solicitor is instructed by you and takes the view that you may be eligible for public funding, they must advise you accordingly, even though the solicitor or their firm may not themselves undertake publicly funded work. This advice must be given promptly, before you incur significant costs on a privately paying basis.

Types of funding:

For most family cases, the type of funding corresponds with a level of standard fixed fee which the solicitor will receive for the work undertaken on your behalf. The amount of the fixed fee depends on the type of case, for example, financial cases may receive a higher fee than children cases, and the location of the firm, higher fees being paid in London, for example.

Eligibility:

To be financially eligible for Legal Aid, you must come within the financial limits. At present, the capital limit is £8,000.

Please note, if you are in receipt of:

  • Income Support (IS),
  • Jobseekers Allowance (JSA),
  • Universal Credit (UC),
  • Guarantee Credit element of Pension Credit (GC) or,
  • Income-related Employment and Support Allowance (ESA),

You will automatically qualify on income grounds.

Further, Legal Help will only be provided where there is sufficient benefit to you, having regard to the circumstances of the case, including the personal circumstances of you, to justify work being carried out.

Please note, Legal Help will not be provided, if your claim is clearly vexatious or an abuse of the process.

The statutory charge:

If you are awarded Legal Aid, it may not amount to free legal representation if you benefit financially from the case. Any property you receive may also be taken by the Legal Aid Agency and applied in payment towards your solicitor’s fees. The underlying principle is to put the funded client as far as possible in the same position as a privately paying client.

However, the following are excluded and will not be taken by the Legal Aid Agency, these include:

  • Periodical payments;
  • Payments on or after the making of an occupation order;
  • Lump sums or property adjustment orders made after divorce in substitution for spousal maintenance.
  • Some pension attachments or pension sharing orders.

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