Financial eligibilityCivil legal aid:financial eligibilityCivil legal aid:financial eligibilityCivil legal aid:financial eligibilityCivil legal aid:financial eligibilityCivil legal aid:financial eligibilityCivil legal aid:financial eligibilityCivil legal aid:financial eligibilityCivil legal aid:financial eligibility:passporting benefitsCivil legal aid:financial eligibilityCivil legal aid:financial eligibility:passporting benefitsCivil legal aid:financial eligibilityCivil legal aid:financial eligibility:passporting benefitsCivil legal aid:financial eligibilityCivil legal aid:financial eligibility:passporting benefitsCivil legal aid:financial eligibilityCivil legal aid:financial eligibility:capital, assessment ofCivil legal aid:financial eligibilityCapital:assessmentCivil legal aid:financial eligibility:capital, assessment ofCivil legal aid:financial eligibilityCapital:assessmentCivil legal aid:financial eligibility:capital, assessment ofCivil legal aid:financial eligibilityCapital:assessmentCivil legal aid:financial eligibility:capital, assessment ofCivil legal aid:financial eligibilityCapital:assessmentCivil legal aid:financial eligibility:capital, assessment ofCivil legal aid:financial eligibilityCapital:assessmentCivil legal aid:financial eligibility:capital, assessment ofCivil legal aid:financial eligibilityCapital:assessmentCivil legal aid:financial eligibility:capital, assessment of:clients over 60Civil legal aid:financial eligibility:capital, assessment ofCivil legal aid:financial eligibilityCapital:assessmentContributionsCivil legal aid:financial eligibility:capital, assessment of:contributions from capitalCivil legal aid:financial eligibility:capital, assessment ofCivil legal aid:financial eligibilityCapital:assessmentContributionsCivil legal aid:financial eligibility:capital, assessment of:contributions from capitalCivil legal aid:financial eligibility:capital, assessment ofCivil legal aid:financial eligibilityCapital:assessmentIncome:assessmentCivil legal aid:financial eligibility:income, assessment ofCivil legal aid:financial eligibilityIncome:assessmentCivil legal aid:financial eligibility:income, assessment ofCivil legal aid:financial eligibilityIncome:assessmentCivil legal aid:financial eligibility:income, assessment ofCivil legal aid:financial eligibilityIncome:assessmentCivil legal aid:financial eligibility:income, assessment ofCivil legal aid:financial eligibilityCivil legal aid:financial eligibility:child, means ofCivil legal aid:financial eligibilityChild:assessment of meansCivil legal aid:financial eligibility:child, means ofCivil legal aid:financial eligibilityChild:assessment of meansQC:CLS Funding CertificatesCivil legal aid:financial eligibility:child, means ofCivil legal aid:financial eligibilityChild:assessment of meansCivil legal aid:financial eligibilityCivil legal aid:availability without regard to meansCivil legal aid:financial eligibilityCivil legal aid:availability without regard to meansCivil legal aid:financial eligibilityCivil legal aid:availability without regard to means
3.35There are two significant barriers to taking on cases: the means test and the merits test. Every client must qualify financially before their case can be taken on (with very limited exceptions in the family and mental health categories; see chapters 7 and 10), and the case must pass the relevant merits test.
3.36Financial eligibility is assessed on three separate criteria, all of which the client must satisfy, by being below the threshold on capital, gross income and disposable income.
3.37The limits on each of these are set out in the Civil Legal Aid (Financial Resources and Payment for Services) Regulations 2013 which are amended periodically. Up to date limits can be found on the LAA website:
www.gov.uk/civil-legal-aid-means-testing.
3.38In the case of controlled work, you should ascertain the client’s resources and calculate eligibility; the decision on whether the means test is met is delegated to you. For licensed work, however, the decision is made by the LAA.
3.39The LAA has provided guides to assessing eligibility for controlled and certificated work. In relation to certificated work, see also the Means Assessment Guidance issued by the LAA’s legal team in August 2014, which is helpful in more complex cases. They can all be downloaded from
www.gov.uk/civil-legal-aid-means-testing. There is also an eligibility calculator at
http://civil-eligibility-calculator.justice.gov.uk/ – use of the calculator should ensure that your assessment of whether your client is eligible is accurate.
Case study
Para 3.23 of the 2013 Civil Contract says that satisfactory evidence of the client’s means must be provided before we assess eligibility. Our clients rarely bring this evidence with them to the first appointment. Is there anything we can do about this?
You need to explain clearly to clients what evidence they will need to bring with them. Many organisations now train a member of support staff to understand what is and not acceptable and ensure that clients bring what is necessary to the first appointment. This can be confirmed in a standard letter and clients can be sent a text message the day before to remind them of the appointment and what they need to bring with them.
However, if you can justify it to protect your client’s position, then you can start work before the client provides evidence, and in very rare cases the LAA may accept that it is not possible for them to provide it at all (2013 Contract Specification para 3.24). However, the LAA are taking an increasingly strict approach to this provision on audit, and if they deem that it was not reasonable to rely on it, or that evidence of means should have been provided at some point later than the first appointment, the file may be nil assessed. However, a new point of principle, CLA59, may lead to a revised approach. CLA59
1See the Point of Principle (POP) Manual at www.gov.uk/government/uploads/system/uploads/attachment_data/file/593014/pop-manual.pdf/. says that a LAA assessor should only overturn an exercise of discretion allowed by the rules if it was manifestly unreasonable.
3.40Where the client has a partner with whom he or she is living as a couple, you should always aggregate the means of both the client and the partner. Partner means:
•spouse or civil partner;
•person with whom the client lives or ordinarily lives as a couple,
but not where they are separated because of a relationship breakdown likely to be permanent.
2Civil Legal Aid (Financial Resources and Payment for Services) Regulations 2013 reg 2.Passporting benefits
3.42A client in receipt of passporting benefits automatically qualifies for legal aid on income. However, an assessment of capital will still be required and legal aid must be refused if the capital test is not met, even if the client receives a passporting benefits.
3.43Current income passporting benefits are:
•income support;
•income-based jobseeker’s allowance;
•universal credit;
•guarantee pension credit;
•income-related employment and support allowance.
3.44Support under sections 4 or 95 of the Immigration and Asylum Act 1999 is similarly passported, but only for Legal Help and Controlled Legal Representation in the immigration category.
4Civil Legal Aid (Financial Resources and Payment for Services) Regulations 2013 reg 26.3.45The evidence requirement for capital is the provision of three months’ bank statements or similar.
Assessment of capital
3.46Capital is ‘every resource of a capital nature belonging to [the client] on the date on which the application is made’,
5Reg 30. either as money or as the realisable value of an asset.
6Reg 31. It includes money owed to the client, whether or not recovered,
7Reg 32. and also includes life insurance and endowments if their security can be borrowed upon.
8Reg 33.3.47However, the value of household furniture and effects, a car (unless of exceptional value), clothing and tools of trade is excluded,
9Reg 34. as is (in the case of controlled work) money the client could realise by selling or borrowing on the strength of any business he or she may own.
10Reg 36.3.48Where the client owns property, the value of that property should be taken into account in the calculation. The value is the client’s equity – that is, the current realisable market value
11Reg 31. (the LAA
Guide to determining financial eligibility for certificated work – April 2014 v1,
12The guides to assessing controlled and certificated work can both be downloaded from www.gov.uk/civil-legal-aid-means-testing. states that a deduction of three per cent should be made from the value, to allow for the cost of selling the property. This does not appear in the equivalent guidance for assessing eligibility for controlled work;
13Guide to Determining Financial Eligibility For Controlled Work and Family Mediation’, April 2015, v1. but arguably, it should as the regulation is the same), less the value of any outstanding mortgage. Deduction for mortgage is capped to £100,000
14Reg 37. – so where a property is worth £220,000 and the outstanding mortgage is £120,000, the client’s equity should be taken as £120,000, not £100,000. The first £100,000 of equity should also be disregarded.
15Reg 39. Where the client owns a second property, any unused mortgage disregard may be applied to that property, up to a maximum of £100,000 across all properties. However, no equity disregard can be applied, even if the full amount was not used for the client’s home – the mortgage disregard applies across all property owned, but the equity disregard applies only to the client’s main dwelling.
3.49Jointly owned property should be taken into account. Where jointly owned with the client’s partner, the entire value will be taken into account because of aggregation of means. Where it is jointly owned with someone else, only the client’s share or interest will be taken into account. The default position is that the client’s share will be assumed to be 50 per cent, unless there is evidence to the contrary.
3.50Where any property is the subject matter of the dispute (SMOD), the value of that property may be disregarded from the calculation, up to a maximum of £100,000. It is only the value of the client’s interest that is disregarded; the value of the opponent’s interest is not taken into account at all.
16Reg 38. The SMOD disregard is applied after the mortgage disregard, but before the equity disregard. For example:
A client jointly owns a property worth £400,000 with a mortgage of £170,000. The property is the subject of a dispute with her former husband.
The property value is £400,000 less the maximum mortgage disregard of £100,000 – so £300,000 is taken as being the equity value of the property in dispute. The client’s share of the equity is presumed to be 50 per cent of this – £150,000. The SMOD disregard of £100,000 is then applied, leaving a value of £50,000. Finally, the equity disregard is applied, leaving a value of nil to be take into account on the capital assessment – and so the client is eligible on capital.
3.51A client applying for an injunction in domestic violence or forced marriage protection proceedings is not subject to the capital threshold
17Reg 12. and there is no limit on eligibility for capital purposes. However, contributions are not waived, so the practical value of this concession is limited in most cases.
Case study
My client instructs me to advise her regarding financial matters. She qualifies for legal aid because of a history of domestic abuse, and has evidence in the form of a letter from her GP. She and her husband own (as joint tenants) a flat, which has just been valued at £550,000. She wants the flat to be transferred to her. The outstanding mortgage is £150,000. Is she eligible for a certificate?
The value of the property should be taken as £533,500 – that is, £550,000 minus 3 per cent costs of sale. Disregard the mortgage, capped to £100,000 – so the equity is £433,500.
The client’s share of this is £216,750, half of the equity – although the asset is in dispute, there is a presumption of equal shares for the purposes of assessment, and they are joint tenants.
Apply the SMOD disregard of £100,000, which leaves £116,750. Then, as this is the client’s main home, apply the equity disregard of £100,000 – leaving capital of £16,750.
As the capital threshold is £8,000, the client is therefore not eligible. Although her case is in scope because she is a victim of domestic violence, the domestic violence capital waiver does not apply to financial matters, only to injunctions.
Clients over 60
3.52Where a client is aged 60 or over, they are entitled to a further disregard on capital. The level of the disregard is on a sliding scale determined by disposable income (see below) up to a maximum of £100,000 of capital.
18Reg 41. Using the online calculator
19http://civil-eligibility-calculator.justice.gov.uk/. will allow you to ensure this is calculated correctly.
Contributions from capital
3.53There are two limits for capital – a lower and upper limit. Where a client is below the lower limit, currently £3,000, they are eligible on capital with no need to pay a contribution. Where they are above the lower limit but below the upper limit (currently £8,000), they must pay a contribution. Any contribution is payable at the start of the case and is the lower of the amount by which capital exceeds £3,000 or the estimated likely total costs of the case. Where the eventual costs are lower than any contribution paid, the balance will be refunded to the client. Capital contributions can cause problems in cases where the only capital is the value of the client’s home as it may be difficult for the client to raise funds to cover the contribution quickly or at all.
3.54In proceedings for an injunction to prevent domestic violence or a forced marriage, the upper capital limit can be waived
20Reg 12. – but not the requirement to pay contributions.
Assessment of income
3.55Once you have found the client eligible on capital, you should proceed to the next stage, assessment of income. The client must be eligible on both gross and disposable income, and the thresholds are set on the basis of a calendar month. For example, if the client instructs you on 6 March, you should look at all money received since 7 February.
3.56‘Gross income’ means total income from all sources (apart from housing benefit and some benefits and allowances, most commonly disability living allowance/personal independence payment).
21Civil Legal Aid (Financial Resources and Payment for Services) Regulations 2013 regs 21 and 24. It will include salary, benefits, maintenance, and any other income.
3.57You should deduct the following expenses from gross income to arrive at disposable income:
•the amount payable
22Note the amount the client is contractually liable to pay, not the amount they are actually paying. This can be important in housing cases where the client is in arrears and not paying rent. See R (Southwark Law Centre) v Legal Services Commission; R (Dennis) v Legal Services Commission [2007] EWHC 1715 (Admin). Although decided on the previous regulations, the same wording is used in reg 28. of any rent or mortgage payments, net of any housing benefit – but capped to £545 per month if the client has no dependants;
23Civil Legal Aid (Financial Resources and Payment for Services) Regulations 2013 reg 28. •tax and National Insurance contributions on any earnings;
24Reg 23. •childcare costs, but only to the extent that they are incurred because of work or study outside the home and only where reasonable to make a deduction;
25Reg 27. •where working, a fixed cost of employment allowance of £45 (for both the client and partner if both are working);
26Civil Legal Aid (Financial Resources and Payment for Services) Regulations 2013 reg 27. •any maintenance being paid in respect of a child or other dependent relative or former partner not a member of the client’s household;
27Reg 26. and
•fixed dependants’ allowances for the partner and each other dependent relative who is a member of the household. (Note that it is a common misconception that the dependants’ allowances can only be claimed in respect of the client’s children, an impression not dispelled by the wording of the forms which refer to ‘child’. The regulations are quite clear that the allowance is claimable for
any dependent relative who is a member of the client’s household.)
28Reg 25. Assessment of the means of a child
3.59You are allowed to accept applications from a child.
29Civil Legal Aid (Procedure) Regulations 2012 reg 22. When deciding on an application for Legal Help, you should assess the means of the child and those of the person(s) who have care and control or are liable to maintain the child or who usually contribute substantially to the child’s maintenance. So, in effect, you will often be assessing the means of the parents, with the expectation that they should fund the case if they are able to do so.
30Standard Civil Contract Specification 2013 para 3.27.3.60However, you should consider whether it is just and equitable to aggregate the child’s means with those of the person(s) liable to maintain them, and if it is not just and equitable you should just assess the means of the child. No guidance is given as to what is ‘just and equitable’, although the contract says that the presumption is that there should be aggregation but that you can take into account all the circumstances, including the age and resources of the child, and that non-aggregation is more likely to be justified where there is a conflict between the child and the liable person.
31Standard Civil Contract Specification 2013 para 3.28. In the absence of detailed guidance, this is a decision for you as the provider assessing eligibility for Legal Help, and you should therefore keep a detailed file note justifying your decision, especially if it is a decision not to aggregate.
3.61Where a child applies for a funding certificate, it is generally only the child’s means that are taken into account, not those of the litigation friend or any other person liable to maintain the child, and therefore you should only include the child’s finances on the MEANS form.
32Civil Legal Aid (Financial Resources and Payment for Services) Regulations 2013 reg 16(3) and (4). However, in family cases you should consider whether to aggregate in the same way as for Legal Help.
Legal aid available without regard to means
3.62Legal aid for the following types of case is not means tested:
33Reg 5.•Special Children Act cases and related proceedings (see chapter 6).
•Family Help (Lower) in cases where Children Act 1989 s31 proceedings are contemplated and the client is a parent or person with parental responsibility;
•Mental Health Tribunal cases (see chapter 10);
•certificates in Mental Capacity Act 2005 s21A cases before the Court of Protection where the client is deprived of their liberty;
•terrorism prevention and investigation measure applications, notices and proceedings;
•Hague Convention and European Convention on Child Custody cases;
•various cases concerning international enforcement of child maintenance etc. under the United Kingdom’s international treaties and obligations;
•mediation information and assessment meetings and mediation in Hague Convention cases.
3.63In family cases concerning injunctions for domestic violence and forced marriage the eligibility limits – but not contributions – can be waived. See chapter 6.
3.64In inquests (where exceptional funding is granted) multi-party actions and cross-border disputes, eligibility limits and contributions can be waived.