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Scope
5.79Legal Aid Representation Certificates are also known as ‘full legal aid certificates’. They authorise the conduct of litigation and the provision of advocacy and representation, and generally – though not always
1For example – a certificate is not available in housing possession cases until proceedings have been issued; see chapter 11. – include steps preliminary and incidental to proceedings, and steps to settle or avoid proceedings.
5.80Clients in receipt of a legal aid certificate have a high degree of protection against costs being awarded against them.
2LASPO s26 and Civil Legal Aid (Costs) Regulations 2013. Failure to advise clients of their ability to seek public funding where available is a matter of professional misconduct
3Solicitors Code of Conduct 2011 Indicative Behaviour 1.16. (though there is no obligation on any individual solicitor to take on a case on legal aid as opposed to privately as long as the client is aware they could have got legal aid somewhere else).
Investigative representation
5.81This is a type of civil legal aid funding certificate (not available in family, mental health or immigration) limited to the investigation of a claim where the prospects of success are unclear without substantial investigative work; but it appears that once the investigative work is completed, the case would meet the merits test for a representation certificate
4Civil Legal Aid (Merits Criteria) Regulations 2013 reg 40. (see below). It is preferable to conduct investigation under this form of funding where possible rather than under Legal Help as it is paid under hourly rates and there is less uncertainty about payment than a Legal Help escape fee claim.
5.82The Lord Chancellor’s Guidance on civil legal aid
5Lord Chancellor’s Guidance under section 4 of LASPO 2012, para 6.11. suggests that substantial investigative work would be at least six hours of fee earner work or disbursements (including counsel’s fees) of £400 or more (ex VAT). Therefore, an application needs to be very clear about the extent of work required. It may be possible to obtain a very brief opinion pro bono from counsel to confirm that merits are not clear and counsel will need to consider the papers in full before advising on merits. It will not be necessary for counsel to give any advice on the actual details of the case itself at this stage.
Before you apply for a certificate
5.83You need to ensure that the standard criteria are satisfied (see also para 5.92):
•The case must concern a matter of England and Wales (or Welsh) law, and in an area permitted by LASPO (see chapter 3).
•The client must be an individual, and a party or proposed party to the proceedings or potential proceedings.
•You must be permitted by your contract to carry out the case.
•The client must not have acted unreasonably in this or any other application, or in these or any other proceedings (for example, by concealing information or acting dishonestly to obtain funding – this criterion does not refer to a client’s general character or notoriety).
•There must be no alternative funding available to the client, for example through an insurance policy or trade union membership, or through another person or organisation the client could approach to fund the case.
•There must be no alternatives to litigation, or the client must have exhausted reasonable alternatives, such as complaints and ombudsman schemes and alternative dispute resolution mechanisms.
•The application should not be premature – that is, funding under Legal Help or Help at Court would not be more appropriate at this stage.
•It must be necessary for the client to be represented in the proceedings, and funding will be refused if it is not necessary, for example if the case is straightforward and parties would ordinarily not be represented, or if the client does not need to be separately represented.
•Funding will be refused for cases allocated to the small claims track in the county court.
6Civil Legal Aid (Merits Criteria) Regulations 2013 reg 39. •Representation will be refused if the case is suitable for a conditional fee agreement and the client is likely to be able to enter into a conditional fee agreement (CFA), damages-based agreement or other litigation funding agreement.
7Civil Legal Aid (Merits Criteria) Regulations 2013 reg 2. This test is likely to be applied strictly.
8See para 7.16 of the Lord Chancellor’s Guidance on Civil Legal Aid. Clients abroad
5.84Although the case must be a matter of England and Wales (or Welsh) law, the client does not have to be resident in England or Wales to receive funding. Where clients abroad are entitled to access the courts in England and Wales, they remain eligible for legal aid subject to the usual scope, means and merits provisions. For example, legal aid is likely to be refused if any order obtained in England and Wales is likely to be ineffective, for example, if there is no reciprocal judicial protocol.
9Civil Legal Aid (Merits Criteria) Regulations 2013 reg 66(2).5.85The proposed residence test
10https://legalaidhandbook.com/2014/06/17/can-you-prove-it/. has been ruled unlawful by the Supreme Court
11R (Public Law Project) v The Lord Chancellor [2016] UKSC 39. in the form in which the government intended to implement it. It is now clear that any residence test will require primary legislation and at the time of writing no further policy announcement had been made
Clients abroad – procedures
5.86Where the client is outside the EU (the Channel Islands and Isle of Man counting as part of the EU for these purposes), special procedures must be followed:
•The application must be made in English or French.
•If the client is not a member of UK armed forces posted outside the EU, the application must be sworn before a person authorised under local law to administer oaths or before a British consular official.
•The application must be accompanied by a sworn statement, made by a responsible person who has knowledge of the facts, certifying the client’s statement of means as accurate.
12Civil Legal Aid (Procedure) Regulations 2012 reg 31(3). Clients from abroad
5.87Under Home Office guidelines,
13See www.gov.uk/government/publications/public-funds. legal aid is not classed as a ‘public fund’ for the purposes of those with no recourse to public funds. Legal aid is available regardless of immigration status.
Children
5.88Where the client is a child, you should note that (unlike controlled work) children cannot apply for funding direct. Where children are parties to litigation in the courts, they should be represented by litigation friends, and it is the litigation friend who should make the application for funding on behalf of the child. However, the application should be in the name of the child. Where the court orders that the child can be a party to the proceedings without a litigation friend, you should make the application on the child’s behalf as the child’s solicitor.
14Civil Legal Aid (Procedure) Regulations 2012 reg 30(2)(b).5.89The child’s own means, not those of the litigation friend, are the means to be assessed, and you should therefore put the child’s means on the MEANS form.
15Civil Legal Aid (Financial Resources and Payment for Services) Regulations 2013 reg 13. In cases where others might have an interest (for example, in special educational needs and public law cases), the LAA can require them to make a financial contribution.
16Civil Legal Aid (Financial Resources and Payment for Services) Regulations 2013 reg 44(6). Therefore, where you are submitting an application on behalf of a child, you should make clear whether you are seeking to justify non-aggregation of means, and if so, explain why it would be inequitable to aggregate, for example because there is a conflict between the child and adult.
Financial eligibility
5.90See chapter 3. See also para 5.148 ‘Funding from the client’s point of view’, below. Where the client declares a bank account on the MEANS form, he or she will be required to provide three months’ worth of statements. Where the client is in employment, he or she will need to provide three months wage slips (and an L17 is not required unless they cannot do so).
Merits test
5.91Funding will not be granted unless the case passes the merits test. There are a number of different merits tests depending on the type of case – for those that apply in family, immigration and housing cases, see chapters 6, 7, 9 and 11; for all others, see below. The various merits tests are set out in the Civil Legal Aid (Merits Criteria) Regulations 2013, amended by the Civil Legal Aid (Merits Criteria) (Amendment) Regulations 2016, and in each case you must satisfy both the standard criteria and the particular criteria applicable to the case.
The standard criteria
5.92Before you apply for a certificate you need to ensure that the standard criteria are satisfied:
17Civil Legal Aid (Merits Criteria) Regulations 2013 reg 39.(a)the individual does not have access to other potential sources of funding (other than a conditional fee agreement) from which it would be reasonable to fund the case;
(b)the case is unsuitable for a conditional fee agreement;
18See para 7.16 of the Lord Chancellor’s Guidance on Civil Legal Aid for the approach the LAA will take to suitability for a CFA. See also para 5.96 below. (c)there is no other person other than the individual, including a person who might benefit from the proceedings, who can reasonably be expected to bring the proceedings;
(d)the individual has exhausted all reasonable alternatives to bringing proceedings including any complaints system, ombudsman scheme or other form of alternative dispute resolution;
(e)there is a need for representation in all the circumstances of the case including–
(i)the nature and complexity of the issues;
(ii)the existence of other proceedings; and
(iii)the interests of other parties to the proceedings; and
(f)the proceedings are not likely to be allocated to the small claims track.
5.93The first criterion requires you to consider whether the client has alternative methods of funding the case at their disposal, and you will need to explore with the client and consider whether they have, for example, trade union membership or legal expenses insurance. Many household insurance policies include legal expenses insurance and therefore if the client has a policy you will need to consider the certificates to satisfy yourself that the particular case is not covered (you will need to address this on the application form).
5.94The LAA will ask people unconnected with the case (and possibly even unrelated to the client) to complete CIVAPP1 or CIVAPP3 forms. This has forced clients to tell people they might not wish to know, about their situation. The difficulty is that the Civil Legal Aid (Financial Resources and Payment for Services) Regulations 2013 reg 16(5) allows the LAA to take the resources of persons other than the person applying for legal aid into account if the LAA considers that they may be ‘substantially maintaining’ the client. However, this power is discretionary, and if there are valid reasons why it should not be applied in a particular case, the LAA should be asked to take these into account.
5.95For example, the LAA will want evidence about the means of adults living in a property if it appears they would benefit from defending possession proceedings and could contribute to legal costs. If they are unable to contribute due to their own circumstances, the reason should be provided in the ‘extra information’ section of the CIV Means2 form.
5.96The Director of Legal Aid has to consider whether the case is ‘unsuitable’ for a CFA and the LAA changed the wording on the CIVAPP 1 form so that it matches the exact wording of the regulation.
19Civil Legal Aid (Merits Criteria) Regulations 2013 reg 39. You therefore need to make sure you tick the ‘yes’ box on the form to confirm the case is NOT suitable for a CFA, bearing in mind the guidance below. The Lord Chancellor’s Guidance on Civil Legal Aid says:
7.17 The test of suitability for a CFA is an objective one, rather than a question of whether an individual provider is willing to act under a CFA (although the test cannot be met if there is evidence of a CFA in fact having been offered or put in place for the applicant). In principle a non-family case may be considered suitable for a conditional fee agreement if:
– Prospects of success are considered at least at 60%
– The opponent is considered able to meet any costs and/or damages (or other sum of money) that might be awarded
– After-the-event insurance can be obtained by the applicant
7.18 An applicant without after-the-event insurance seeking services otherwise considered suitable for a CFA will be expected to provide evidence of attempts to secure such insurance. Even where evidence is provided of refusals of insurance, the Director him/herself may make enquiries of insurers to see if they would support a CFA in the individual circumstances. Moreover, it will not always be sufficient for the applicant to allege that s/he cannot afford the after-the-event premium. If the proposed claim is for damages then the applicant would need to demonstrate that it has not been possible to defer payment of the premium from any damages recovered.
7.19 If the proposed proceedings do not include a claim for damages or other money, however, particular considerations apply. An applicant for legal aid is unlikely to be able to pay an after-the-event insurance premium or success fee from his/her own resources, and the case should not generally be considered as suitable for a CFA unless both:
•prospects of success are at least 80%, (otherwise it would be unreasonable to expect the legal representative to act at risk in relation to costs without the prospect of a success fee or for the applicant to risk an adverse costs order); and
•the case will not involve significant expenditure on disbursements (in particular experts’ fees).
Of course, if there is no likelihood of either damages or costs being awarded (for instance in seeking an injunction against an impecunious opponent) then there is no basis on which the case could be pursued under a CFA.
7.20 The fact that the applicant may wish to obtain legal aid rather than a CFA because of the potential deduction from damages in respect of a success premium or damages agreement, will not of itself prevent a case being suitable for a CFA. The test is not whether the applicant or provider would prefer legal aid to a CFA, but is, in essence, whether the case could realistically be brought under a CFA in the absence of legal aid. It will be a question of fact on the individual circumstances of the case whether the need to meet an insurance payment from the likely damages would render the proceedings futile.
5.97You may wish to carry out a pre-emptive ‘shopping around’ exercise, trying to attempt obtaining ATE in a couple of typical scenarios, so that you could use those as examples of why a CFA is not available. If you are an NfP agency that does not offer CFAs, you could try asking a friendly firm whether they would accept some typical case scenarios on a CFA basis and again use their response as evidence that such cases are not commercially attractive. If you are a private firm that does offer CFAs, you could set out your criteria for accepting CFAs and why the particular case does not meet them.
5.98Two key criteria that must be addressed are the need for representation and the likely track allocation. The effect of these is that legal aid will not be available for the most simple and straightforward cases, including those likely to be small claims.
The various merits tests
5.99In addition to satisfying the standard criteria, you must be able to demonstrate that your case passes the applicable merits test for the type of work. Most merits criteria are expressed by reference to the
prospects of success test. In
IS (by the Official Solicitor as Litigation Friend) v The Director of Legal Aid Casework and The Lord Chancellor,
20[2015] EWHC 1965 (Admin). Collins J declared unlawful the part of the merits test which restricted legal aid to cases where the prospects of success were better than 50 per cent, and so the LAA revised the test with effect from 27 July 2015.
From that date, the Civil Legal Aid (Merits Criteria) Regulations 2013 were amended by the Civil Legal Aid (Merits Criteria) (Amendment) (No 2) Regulations 2015. However, the Court of Appeal unanimously allowed the Lord Chancellor’s appeal against Collins J.
21IS v Director of Legal Aid Casework and Lord Chancellor [2016] EWCA Civ 464. This led the Lord Chancellor to issue further regulations, the Civil Legal Aid (Merits Criteria) (Amendment) Regulations 2016. The 2016 regulations amended the merits tests, but not simply to reverse the 2015 changes – instead, further changes were made building on and revising the 2015 changes.
5.100Unfortunately the LAA does not make available consolidated sets of regulations, and neither does the official government site
www.legislation.gov.uk. It is therefore necessary to consult and cross reference the 2013, 2015 and 2016 regulations in order to see the full accurate test. In our view, this is very unsatisfactory and we would encourage the LAA to make publicly available a single, definitive and up-to-date set of regulations for the whole scheme.
Regulation 5 of the 2013 regulations, as amended by regulation 2 of the 2015 regulations and regulation 2 of the 2016 regulations sets out the prospects of success – the likelihood of achieving a successful substantive outcome – and categorises them thus:
•very good – 80% or above;
•good – 60% to 80%;
•moderate – 50% to 60%;
•marginal – 45% to 50%;
•poor – less than 45%;
•borderline – it is not possible, because of disputed law, fact or expert evidence, to assign the case to another category but it cannot be categorised as ‘unclear’; or
•unclear – the case cannot be assigned to any of the other categories because there are identifiable investigations to be carried out after which the prospects can be estimated.
5.101The ‘borderline’ category was removed from the merits tests in 2014 by the Civil Legal Aid (Merits Criteria) (Amendment) Regulations 2014, but it remained in the definitions, and was reinstated to the merits tests by the 2015 amendment regulations and retained by the 2016 regulations. The 2015 regulations separated the then ‘poor’ (below 50%) category into ‘poor’ and ‘very poor’ (below 20%), making funding available in ‘poor’ cases in limited circumstances. The 2016 regulations replaced the ‘poor’ and ‘very poor’ categories with the ‘marginal’ and ‘poor’ categories set out above.
5.102In
IS in the High Court, Collins J said that the standard to be applied in assessing the prospects of success is the prospects as they would be with the assistance of competent legal representation, not the prospects on the basis of material available but untested at the time of the application. This is to ensure that cases where competent representation would turn the case in the applicant’s favour are not excluded from funding.
22[2015] EWHC 1965 (Admin) para 96, per Collins J. Although the Court of Appeal overturned his declaration that the merits regulations were unlawful, it did not specifically deal with this point. In our view, and notwithstanding that the wider judgment was overturned, that must be the right approach.
5.103Following assessment of the prospects of success, the following will apply:
•Where prospects of success are moderate or better, the prospects of success criterion will be met and so legal aid will be granted (subject to any other criteria that may apply in the individual case).
•Where prospects of success are borderline or marginal, the prospects of success criterion will only be met if the case is of significant wider public interest or of overwhelming importance to the individual.
23Civil Legal Aid (Merits Criteria) Regulations 2013 reg 43, as amended by Civil Legal Aid (Merits Criteria) (Amendment) (No 2) Regulations 2015 reg 2(4). See paras 5.104 and 5.107 below.
•Where prospects of success are unclear, it will generally be more appropriate to grant Investigative Help than full representation, so that investigation can be carried out and the prospects clarified.
•Where prospects of success are poor, representation will be refused.
In addition, the value of the outcome must justify the costs. For damages claims, see below.
5.104Besides the prospects of success test, there are other tests:
The
proportionality test24Civil Legal Aid (Merits Criteria) Regulations 2013 reg 8. is met if ‘the Director is satisfied that the likely benefits of the proceedings to the individual and others justify the likely costs, having regard to the prospects of success and all the other circumstances of the case’.
The
significant wider public interest test25Civil Legal Aid (Merits Criteria) Regulations 2013 reg 6. is met if ‘the Director is satisfied that the case is an appropriate case to realise –
•real benefits to the public at large, other than those which normally flow from cases of the type in question; and
•benefits for an identifiable class of individuals, other than the individual to whom civil legal services may be provided or members of that individual’s family.’
The
reasonable private paying individual test is met if ‘the Director is satisfied that the potential benefit to be gained from the provision of civil legal services justifies the likely costs, such that a reasonable private paying individual would be prepared to start or continue the proceedings having regard to the prospects of success and all the other circumstances of the case’.
26Civil Legal Aid (Merits Criteria) Regulations 2013 reg 6.5.105The cost benefit criteria are: (reg 42 of the 2013 regulations, as amended by reg 2(3) of the 2015 regulations and reg 2(3) of the 2016 regulations):
•If the case is primarily a claim for damages or other sum of money and not of significant wider public interest:
•if prospects are very good, likely damages must exceed likely costs;
•if prospects are good, likely damages must exceed likely costs by a ratio of 2:1;
•if prospects are moderate, the ratio must be 4:1.
•If the case is not primarily a claim for damages or other sum of money and not of significant wider public interest:
•the reasonable private paying client test must be met
•If the case is of significant wider public interest:
•the proportionality test must be met.
5.106The multi-party action criteria are:
•The client’s claim is the lead claim; and
•The case is of significant wider public interest.
The regulations go on to set out a merits test that applies to general certificated cases, with variations for specific types of cases.
5.107A case is of
overwhelming importance to the individual if it is not primarily a claim for damages or other sum of money and relates to the individual’s life, liberty or physical safety (or that of a member of their family) or an immediate risk that the individual may become homeless.
27Civil Legal Aid (Merits Criteria) Regulations 2013 reg 2. For this to apply, that must be at issue in the proceedings and be more than merely academic. A claim for damages for false imprisonment post-dating release will not satisfy this test since liberty is no longer at stake, but a claim for habeas corpus will. If you are relying on the risk of homelessness to justify funding it must be immediate – so relate to occupation of property, not financial difficulties that may lead to later loss of occupation. Homelessness means lack of physical occupation of property, rather than the wider statutory definition of homelessness in Part 7 Housing Act 1996.
28Lord Chancellor’s Guidance on Civil Legal Aid, paras 4.2.10 to 4.2.12.The general merits test for full representation
5.108The general merits test is set out in the Civil Legal Aid (Merits Criteria) Regulations 2013 reg 41 and applies in all cases except those set out below. The test is that:
•The prospects of success criteria are satisfied;
•The cost benefit criteria are satisfied; and
•If the claim is a multi-party action and is primarily a money claim but likely damages do not exceed £5,000, the multi-party action criteria are satisfied.
5.109What this means in practice is that the case must fall into one of the following types:
1)A claim for damages or other sum of money with no significant wider public interest:
a)Prospects of success must be very good and likely damages exceed likely costs;
b)Prospects of success must be good and likely damages exceed likely costs by 2:1; or
c)Prospects of success must be moderate and likely damages exceed likely costs by 4:1.
2)A claim other than for damages or other sum of money, or a defence to a claim, with no significant wider public interest and which is not of overwhelming importance to the individual:
a)Prospects of success must be moderate or better; and
b)The reasonable private paying client test must be met.
3)A claim or defence to a claim which has significant wider public interest:
a)Prospects of success must be marginal or better; and
b)The proportionality test must be met.
4)A case which is of overwhelming importance to the individual:
a)The prospects of success must be marginal or better; and
b)The reasonable private paying client test must be met.
Public law claims
5.110For public law claims (defined in regulation 2 as judicial review, habeas corpus and homelessness appeals), there are additions to the standard criteria:
29Civil Legal Aid (Merits Criteria) Regulations 2013 reg 53 and Civil Legal Aid (Merits Criteria) (Amendment) Regulations 2013.•the act, omission or matter complained of appears to be susceptible to challenge; and
•there are no alternative proceedings before a court or tribunal which are available to challenge the act, omission or other matter, except where the Director considers that such proceedings would not provide an effective remedy.
30Civil Legal Aid (Merits Criteria) Regulations 2013 reg 53(b) as amended by Civil Legal Aid (Merits Criteria) (Amendment) Regulations 2013 reg 2. 5.111The merits test for full representation in public law claims is:
31Civil Legal Aid (Merits Criteria) Regulations 2013 reg 56 amended by Civil Legal Aid (Merits Criteria) (Amendment) (No 2) Regulations 2015 reg 2(5).•the standard criteria are met (including the additional ones above);
•unless impracticable to do so, a letter before claim has been sent and the defendant given a reasonable time to respond;
•the proportionality test is met; and
•prospects of success are:
•moderate or better; or
•borderline or marginal, and:
•the case is of significant wider public interest;
•the case is of overwhelming importance to the individual; or
•the substance of the case relates to a breach of Convention rights.
32See chapter 5 of the Lord Chancellor’s Guidance on Civil Legal Aid. See para 7.34 of the Lord Chancellor’s Guidance for detailed guidance on public law claims.
Claims against public authorities
5.112For claims against public authorities (paras 21 and 22 of Part 1 of Schedule 1 of LASPO), the test is
33Civil Legal Aid (Merits Criteria) Regulations 2013, as amended by the 2015 and 2016 regulations.:
•the proportionality test is met; and
•prospects of success are:
•moderate or better; or
•borderline or marginal, and:
•the case is of significant wider public interest;the case is of overwhelming importance to the individual; orthe substance of the case relates to a breach of Convention rights.
34See chapter 5 of the Lord Chancellor’s Guidance on Civil Legal Aid. Other cases
5.113For immigration, housing, mental health and family merits tests, see the appropriate chapters of this book.
Changes to prospects of success or cost-benefit
5.114As the case progresses, inevitably further information and evidence will come to light. If you consider that the merits test is no longer met, the case should be referred to the LAA for decision.
8.35 Regulation 42 addresses the grounds and procedures for withdrawal of determinations. The grounds for withdrawal are set out at 42(1). These are expanded in comparison with those under the funding code to include the provisions in relation to the domestic violence ‘gateway’ to civil legal services in family proceedings no longer being satisfied 42(k) and a ground for withdrawal.
8.36 Regulation 42(3) provides for an equivalent of the ‘show cause’ procedure under the funding code procedures through notification of an intention to withdraw a determination. The scheme is different in that, if the determination is withdrawn as a result of this procedure, the withdrawal takes place with effect from the initial notification of intention (42(3)). That represents a difference from the position under the funding code in that:
(a)The client will not have cost protection, under the Civil Legal Aid (Costs) Regulations 2013, in the period from when the Director first notified an intention to withdraw the determination;
(b)The provider can carry out work at risk in relation to whether the withdrawal does occur, whereas no work could be carried out within the show cause period under the funding code without express permission irrespective of the ultimate outcome of the show cause.