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Legal aid means test review
The government is reviewing how it decides who’s eligible for legal aid support, following challenges brought by the Public Law Project and supported by the Law Society.
In January 2021, the government made changes to the legal aid means test:
- the mortgage cap on capital assessments has been removed
- payments from infected blood support schemes (and other specified compensation payments) no longer disadvantage those applying for legal aid
These changes were introduced through the Civil Legal Aid (Financial Resources and Payment for Services) (Amendment) Regulations 2020. This statutory instrument was laid to settle a legal challenge brought on behalf of RH by the Public Law Project and supported by the Law Society.
In April 2021, the lord chancellor published revised guidance for determining who is eligible for civil legal aid:
The lord chancellor’s guidance also covers the successful judicial review of R (oao GR) v Director of Legal Aid Casework  EWHC 3140 (Admin). It found that where a low-income home owner has been assessed as having capital in their home above the normal limits, but can prove they cannot access that income, the director of legal aid casework may exercise discretion and allow the applicant to be treated as financially eligible.
This was another case brought by the Public Law Project and supported by the Law Society.
We believe the means test review should:
- seek to understand and address the operational problems within the means test
- ensure that legal aid gives effective access to legal rights for those who cannot afford their own legal costs
- consider the accessibility of available funds – where funds are not reasonably accessible, they should not be considered as income or capital
- ensure equality of arms, particularly where individual cases involve the state
Any revisions should make sure the means test is:
- future proofed – for example, annual up-rating in line with inflation
- simple for both practitioners and the Legal Aid Agency to administer
- simple for the public to understand
Defining “who cannot afford their own legal costs”
In terms of what it means for justice to be reasonably affordable, we recommend that the review uses the definition provided by the supreme court judgment in Unison (R (Unison) v Lord Chancellor  UKSC 51).
Lord Reed states: “where households on low to middle incomes can only afford fees by sacrificing the ordinary and reasonable expenditure required to maintain what would generally be regarded as an acceptable standard of living, the fees cannot be regarded as affordable” (paragraph 93).
What this means for solicitors
Removing the mortgage cap means that the full value of a person's mortgage can now be deducted by the Legal Aid Agency when assessing the value of their property.
Legal aid providers also can disregard payments from certain compensation schemes when assessing eligibility.
Make sure you refer to the Lord Chancellor’s updated guidance when determining what types of work are eligible for legal aid.
What we’re doing
December 2020 – we supported the Public Law Project’s successful legal challenge
November 2020 – we supported a successful judicial review of R (oao GR) v Director of Legal Aid Casework  EWHC 3140 (Admin) brought by the Public Law Project
September 2018 – we responded to the government’s review of the legal aid changes in LASPO
March and September 2018 – we commissioned economic research on the means test, showing the challenges for those on low incomes to afford legal services:
- Disqualified from justice – civil legal aid means test report
- Paying for legal help when ineligible for criminal legal aid – report
- the impact of legal aid capital and contribution thresholds for victims of domestic violence
Lord Chancellor’s guidance on determining financial eligibility for: