Legal aid for pro bono clinics

On this page:

• introduction
• why refer to a legal aid solicitor?
• overview of legal aid
• eligibility for legal aid
• what’s in scope?
• cases outside the scope
• exceptional case funding
• how to find a legal aid solicitor
• if you cannot find a legal aid solicitor
• end legal aid deserts campaign
• problems with the means test
• quick checklist
• why we produced this guide

Introduction

This is a guide to legal aid and its application for solicitors, barristers and other advisers offering pro bono legal advice services.

The guide highlights the areas where funding is still available and outlines how to refer clients on to legal aid solicitors.

The guide is intended to be used by:

• Citizens Advice
• law centres
• university law clinics
• Support Through Court
• pro bono clinics staffed by law firms and chambers
• any other organisation that delivers pro bono legal advice, whether for charitable, educational or other purposes

The guide focuses on civil legal aid due to the relatively low numbers of such clinics that offer advice on criminal matters.

It is aimed at advisers, solicitors and barristers who are supervising at such clinics, and/or management of the organisations where the advisers have some level of legal knowledge but are not specialists in legal aid or social welfare law.

The intention is to increase awareness of the areas where legal aid is still available and the categories of case for which exceptional case funding (ECF) may be applied.

Why refer to a legal aid solicitor?

If you are an adviser or pro bono solicitor working in a pro bono clinic, it is important that you can recognise and refer clients who are eligible for legal aid funding, rather than continuing to offer pro bono advice.

This is for a number of reasons, including:

• expertise: legal aid solicitors will be experts in the area of law affecting your client, and therefore will be able to advise them on the best legal course of action
• experience: legal aid solicitors experience with legal aid schemes and recent cases may help your client navigate a faster route to a legal or practical remedy
• rights: clients who are eligible for legal aid funding have the right to access the legal aid scheme and the associated legal protections, as laid out in statute
• cost protection: clients who instruct a solicitor pro bono in a costs jurisdiction (such as the county court) are at risk of adverse costs. If they are using a legal aid solicitor, they have protection from adverse costs
• scope of funding: legal aid will often cover the cost of any disbursements including interpreters, court fees and expert fees, and of representation at court where necessary
• resources: referring your client to a service where the solicitor will be paid to do the work will free up your resources as a pro bono solicitor to help someone who cannot be helped any other way

Overview of legal aid

Legal aid is only available if:

• your client is eligible
• they can find a legal aid solicitor who covers the right area of law and has capacity to take on the case

Legal aid is normally available as:

• early advice and assistance (called legal help or controlled legal representation) – this is not just one-off advice but ongoing legal casework to resolve the problem up to the stage of court proceedings
• representation in court proceedings (called legal representation or certificated work)

Generally, legal aid is not available for tribunals, although there are some exceptions.

A client can only access legal aid through a law firm or advice agency that has a contract with the Legal Aid Agency (LAA).

Eligibility for legal aid

The scope of the current legal aid scheme is set out in the Legal Aid, Sentencing and Punishment of Offenders Act 2012 (LASPO) and its associated regulatory framework.

For a client to be eligible for legal aid, you need to consider whether:

• the type of case is within the scope of the legal aid scheme (as set out in LASPO)
• the client is financially eligible to receive legal aid – there is a strict means test
• the case itself has sufficient benefit or meets the appropriate merits criteria

Financial eligibility

For some areas of law, your client's financial situation is not taken into account. This covers cases about:

• mental health tribunals
• children in care
• child abduction
• limited housing, debt and welfare benefits advice provided under the Housing Loss Prevention Advice Service (HLPAS)

Capital test

The capital test is the amount of savings, property, shares or other monies that your client or their partner own.

This limit is set at £8,000 for all civil legal services except any relating to an immigration matter, which is capped at £3,000.

If your client owns their own house, then it will be classified as capital, but they are allowed to have up to £100,000 of equity disregarded and will also have their mortgage disregarded.

Income test

If your client has savings or assets of less than £8,000 but receives one of the following benefits, they are likely to pass the income test.

Passporting benefits include:

• Income Support (IS)
• Income-based Jobseeker's Allowance (JSA)
• Universal Credit (UC)
• Pension Credit Guarantee Credit (GC)
• Income-related Employment Support Allowance (ESA)

If your client has savings or assets (other than the home in which they live) worth less than £8,000 and earns £2,657 or less a month then they may be eligible for legal aid.

If they have more than four child dependents, add £222 to this figure for the fifth child and each additional child

To be eligible, net income must be less than the limit, which is currently set at £733 per month.

Net income is defined as income after tax and allowable deductions such as housing costs and allowances for dependent children etc.

Important variations

The LAA waives all upper eligibility limits if your client is applying for legal aid for a court order (injunction) for protection from domestic abuse or forced marriage.

However, clients might be asked to pay a contribution to their legal aid in these cases.

What’s in scope?

Family law

• Forced marriages – where a client needs protection against forced marriage
• Domestic abuse cases:
  • a victim of domestic abuse is likely to be eligible for legal aid in order to get a non-molestation order/injunction to protect themselves from further abuse
  • they may also be eligible if they can provide acceptable evidence of abuse, to get legal aid to help them with a divorce and court proceedings in respect of children or finances as they could not realistically represent themselves against their abuser
• Child abuse – a client may be eligible for legal aid to get court protection for a child who is at risk of, or the victim of, child abuse
• Care cases – typically cases involving social services relating to children at risk/being taken into care/in care (parents and grandparents can be represented)
• Family mediation – to resolve disputes about children and finance on a relationship breakdown
• Special Guardianship Orders for both those with parental responsibilities and prospective guardians
• Some High Court proceedings about the welfare of a child
• If you have been served with proceedings under the 'Hague Convention'

Housing law

• Possession and eviction – your client is likely to be eligible if they are being evicted from their home by their landlord (whether that’s a private landlord, housing association or local authority)
• HLPAS offers limited non-means, non-merits tested advice to those facing repossession. This can include debt and benefits advice as well as a duty advice solicitor at court on the day of the possession hearing
• Homelessness – a person who is homeless or under threat of imminent homelessness is likely to be eligible
• Disrepair – where your client’s rented home is in a state of disrepair and that disrepair presents a serious risk to their health and safety they are likely to be eligible – this could include cases of damp/mould which exacerbate conditions like asthma or cases where there are broken windows, no running water, leaking gas, or a lack of heating, etc.
• Harassment – your client may be eligible where they need protection from harassment by a neighbour or landlord
• Anti-social behaviour – your client may be eligible for legal aid if their local authority is applying for a civil injunction, community protection notice (CPN) or criminal behaviour order (CBO) against them as punishment for anti-social behaviour

Immigration and asylum law

• Individuals making applications for asylum are likely to be eligible
• Individuals in receipt of a removal notice under the Illegal Migration Act are likely to be eligible
• If a client has been detained because of their immigration status, they are likely to be eligible
• Victims of domestic abuse whose immigration status is dependent on being the partner of the perpetrator
• Where the client is a victim of trafficking applying for leave to remain
• Cases where someone is at risk of removal or having citizenship revoked for reasons of 'national security' can be eligible

Debt and welfare benefits

Your client may be eligible if:

• their mortgage company is seeking to repossess their property
• a creditor is seeking to force them to sell their house to settle the debt
• a creditor is trying to make them bankrupt
• their first-tier benefits appeal has failed, and they are now appealing to the Upper Tribunal, the Court of Appeal or the Supreme Court
• advice is provided under the HLPAS scheme

Mental health

A client may be eligible for advice if they:

• have been detained or 'sectioned'
• are making an application to the mental health tribunals
• are involved in Court of Protection work
• are making an appeal against deprivation of liberty safeguards (DoLS)

Community care

Legal aid is available for community care cases. This might involve cases where:

• your client needs help or services from the local authority and/or the NHS because of illness, disability or mental capacity (including Court of Protection cases)
• disputes about the quality of care in residential, nursing homes and hospitals, and abuse/neglect issues

Discrimination

A client may be eligible for legal aid where they have been unlawfully discriminated against by:

• employers
• education
• housing and service providers
• public bodies and associations

Education (special educational needs)

Appeals against Education, Health and Care (EHC) Plans by the council are in scope.

Other

• A court order to protect your client from harassment
• An appeal against a decision stopping your client from working with children and vulnerable adults
• Advice and help on disabled facilities grants
• Civil claims relating to allegations of abuse and sexual assault
• Confiscation proceedings
• An injunction for gang-related violence
• An injunction to stop a nuisance caused by environmental pollution
• Cross-border disputes
• Assistance at inquests (strict criteria apply)
• Cases for children with brain (neurological) injuries resulting in severe disability, which arise during pregnancy, childbirth or up to eight weeks postnatal (not all injuries are covered)

Cases which are outside the scope of legal aid

• Consumer and other contractual disputes
• Most immigration cases other than those referred to previously
• Criminal Injuries Compensation Authority cases
• Private family law, such as divorce, dissolution of civil partnership, property, finance and children matters – other than cases where there is evidence of domestic violence or abuse, or child abuse
• Personal injury or death
• Tort and other general claims
• Conveyancing
• Advice on will-making
• Matters of trust law
• Company or partnership law
• Business law
• Legal advice in relation to a change of name
• Defamation or malicious falsehood

Exceptional case funding

ECF will only be available to people whose human rights or European Union rights would be breached if they did not have legal aid.

In general, this means that it would be in some way unfair or even impossible for a person to deal with a case themselves.

That might be because the case is complicated, or because the person is less able to deal with it alone (for instance, they might suffer from a learning disability).

It could also be because the case is so important to that person that it is not fair for that person to do the case themselves.

A combination of these factors could also mean that funding is required to avoid a breach of that person’s rights.

ECF eligibility

To be eligible for ECF, your client will have to show four things:

• legal aid is not ordinarily available for the case
• the case is strong
• they are financially eligible for legal aid
• their human rights or EU law rights are involved in the case and they would not have effective access to these rights without legal assistance

Pro bono solicitors can help clients apply for ECF in advance of them instructing a legal aid solicitor.

If your clinic is interested in helping clients apply for ECF and would like to discuss whether ECF is suitable, or have questions about the process, likely outcomes or possible approaches, you can contact the Public Law Project (PLP) for advice.

Read the online guidance for organisations assisting with ECF applications

PLP has unique experience of the ECF Scheme and is keen for this experience to be of use to others.

PLP also provides regular training for advice organisations and others on using the ECF scheme.

Check PLP's training and events page for details of upcoming seminars.

If your client has been refused ECF and you would like to challenge this through the courts, the PLP may also be able to help you.

Email exceptionalfunding@publiclawproject.org.uk or call 0207 843 1260.

How to find a legal aid solicitor

These include solicitors in private practice, law centres and some other advice agencies, such as some Citizens Advice Be.

You may want to create and keep a list of your local legal aid providers and refer clients to them.

Use the online legal aid checker to allow your client to see if they are eligible and where their nearest solicitor is.

Visit Find a Solicitor and search for firms who provide legal aid.

Use 'quick search' to choose your legal issue and enter your location. Then click on 'more options' and select the option 'accepts legal aid'.

You can also search for a legal adviser or family mediator with a legal aid contract in England and Wales on the government website.

Civil Legal Advice helpline

Clients must apply through the Civil Legal Advice (CLA) helpline for debt, discrimination or special educational needs cases.

The CLA helpline gives free, independent and confidential advice on:

• debt, if your home is at risk
• housing, if you’re homeless or at risk of being evicted
• domestic abuse
• separating from an abusive partner, when you’re making arrangements for children or sorting out money and property
• a child being taken into care
• special educational needs
• discrimination
• some child abduction cases

Call the helpline on 0345 345 4345 from 9am to 8pm, Monday to Friday and from 9am to 12.30pm on a Saturday.

Calls cost no more than 4p a minute from a BT landline. Calls from mobiles are usually more.

When calling the CLA, your client will need to have proof that they are eligible for legal aid.

Your client is advised to have the following documents with them when they call the CLA:

• recent payslips (if they are working)
• bank statements
• details of any savings and investments they have
• details of any benefits they get
• mortgage statements and a current valuation for any property they own

The problems

There are certain problems you might run into when trying to find your client a legal aid provider.

These include:

• there are a limited number of legal aid solicitors and they have limited capacity at any particular time, so you might not be able to find a legal aid solicitor even if your client is eligible for their help
• legal aid areas are often large, such as Cornwall or Somerset, and clients may not be able to afford to see the one provider which may be located many miles from where they live
• the detailed eligibility and scope rules are complex and there are grey areas, additionally whether someone falls within the means threshold may vary from month-to-month, which means it may be necessary to regularly recalculate depending on changing circumstances
• your client may be financially eligible, and the matter may be in scope, but it may lack sufficient benefit or the merits to justify the expenditure of public money under the Legal Aid Scheme
• your client may not be financially eligible whilst still being unable to afford an alternative form of paid legal advice
• in family cases for victims of domestic abuse some legal aid solicitors may require that evidence of abuse is provided before they can see the client

If you cannot find a local legal aid provider, contact the Civil Legal Advice helpline for guidance on whether an adviser out of the area is available.

To do this, your client can visit the government civil legal advice website, fill in their personal details and book a call-back from the CLA at a time that suits them.

Alternatively, they can call CLA directly on 0345 345 4345.

Where face-to-face advice is considered necessary, or if representation in a court or upper tribunal is needed, the CLA should arrange this for the client.

If you cannot find a legal aid solicitor

We are keen to gather data about where there are legal aid deserts and the areas of law which are affected to support our campaign to restore legal aid funding.

If you are trying, but unable, to refer your client to a legal aid solicitor, you might also want to write to your local MP.

End legal aid deserts campaign

As part of our access to justice work, we are campaigning to tackle housing legal aid deserts – areas with insufficient provision of housing legal aid advice.

Evidence shows that almost one third of legal aid areas in England and Wales have one, or no, housing provider.

One provider per area is not enough – legal aid areas are often large, such as Cornwall or Somerset and people often cannot afford to see the one provider which may be located miles from where they live.

We are calling for the government to urgently address this situation.

Accordingly, we want them to commission an independent review into the sustainability of the civil legal aid system which particularly focuses on economic viability for service providers as well as a focus on local need and demand.

Your data is invaluable to this campaign.

Let us know if you are working for a client pro bono who should be able to access legal aid support.

Problems with the means test

In some cases, your client may have a strong case but has failed the means test, either because they have capital over the limit or their income is just over the limit.

However, your client may be on a low income and unable to pay privately for legal representation.

We are gathering data regarding problems with the means test, let us know if your client is having problems by emailing campaigns@lawsociety.org.uk.

Quick checklist

Financial eligibility

Cases in scope

• Welfare benefit: appeals to Upper Tribunal and above
• Council tax reduction scheme: appeals to the High Court and above
• Debt including: mortgage arrears, forced home sale, a creditor causing bankruptcy
• Housing including: eviction, homelessness and re-housing, serious disrepair, harassment and anti-social behaviour
• Discrimination: by employers, education, housing and service providers, public bodies
• Appeals: against Education, Health and Care (EHC) Plans by the council
• Family and children including: the removal of children and forced marriages
• A client who is a victim of domestic abuse can get legal aid for a protection order and for other private law matters
• Certain immigration and asylum cases
• Certain mental health cases including advice if someone has been detained or 'sectioned' and Court of Protection work
• Community Care cases

You can also get legal aid for certain cases involving:

• protection from harassment
• an appeal against a decision stopping you from working with children and vulnerable adults
• Disabled Facilities Grants
• civil claims relating to allegations of abuse and sexual assault
• confiscation proceedings
• gang-related violence
• nuisance caused by environmental pollution
• cross-border disputes
• assistance at inquests (strict criteria apply)
• cases for children with brain (neurological) injuries resulting in severe disability, which arise during pregnancy, childbirth or up to eight weeks postnatal (not all injuries are covered)

Why we produced this guide

In April 2013, the Legal Aid, Sentencing and Punishment of Offenders (LASPO) Act came into force and introduced cuts in funding to legal aid. This means that:

• fewer people can get legal aid
• it’s more complicated to find out if someone’s eligible for legal aid
• those eligible for legal aid find it hard to access

This has led to more people relying on pro bono services for legal help. This increased pressure on services means it’s important they’re used as efficiently as possible.

Identifying pro bono clients who are eligible for legal aid will free up more of your time to provide pro bono services.