Legal aid means test review
Legal aid is a lifeline for people, usually living in poverty, to help in moments of crisis such as when they're facing eviction or seeking protection from a violent partner. However, to access legal aid people must be means tested.
On 15 March 2022, the government launched a consultation on changes to widen how many people are eligible for legal aid.
The proposals reflect many of the points raised in our 2018 research on how the means test is assessed.
The Ministry of Justice says that proposals should mean that eligibility for legal aid is expanded to:
- an extra 2 million people in civil cases
- 3.5 million more people at the magistrates’ court
- all Crown Court defendants
The consultation closed on 7 June 2022.
To inform our response to this consultation, we commissioned further research by Professor Donald Hirsch on the impact of the proposed changes to the legal aid means test.
The legal aid means test has not been updated in line with inflation since 2009.
Since then, prices have risen by 40%. This means each year fewer and fewer people are eligible for legal aid.
In 2018, we commissioned research into the legal aid means test which showed that:
- people on incomes already 10% to 30% below the minimum income standard are being excluded from legal aid
- some people face barriers to access justice, because the value of their home is taken into account in the means test assessment (even though they cannot access this money)
- others face problems as they cannot access legal aid for representation in criminal cases
In February 2019, the government launched the legal aid means test review as part of its Legal Support Action Plan.
The review considered the means tests, including:
- the income and capital thresholds for civil and criminal legal aid entitlement
- benefits passporting
- non-means tested areas of legal aid
- types of income and capital that are disregarded when assessing financial eligibility
- the contributions system
The government brought in several changes ahead of its final consultation in 2022.
Some of these were in response to strategic litigation undertaken by the Public Law Project and supported by the Law Society.
From 12 January 2022, bereaved families at inquests can apply for legal representation through exceptional case funding (ECF) without means testing.
The changes mean that:
- new and pending applications for ECF inquest funding no longer require means assessments
- no further contributions will be required for existing ECF inquest certificates
- legal help related to the ECF inquest application – and not already in place – will no longer require a means assessment
There is no change to means testing for standalone legal help. However, the legal help waiver provision also remains in place. This allows for advice and assistance in the early stages of the inquest process.
Read the government's ECF guidance
Since January 2021, legal aid providers can disregard the following when assessing how much legal aid someone is entitled to:
- the full value of a person's mortgage
- payments from certain compensation schemes, such as infected blood support schemes
These changes were introduced through the Civil Legal Aid (Financial Resources and Payment for Services) (Amendment) Regulations 2020.
The position on ‘trapped’ capital was clarified in November 2020, through the successful judicial review of R (oao GR) v Director of Legal Aid Casework  EWHC 3140 (Admin).
This was another case brought by the Public Law Project and supported by the Law Society.
The judicial review found that the director of legal aid casework may exercise discretion and allow applicants to be treated as financially eligible if they are a low-income home owner who:
- has been assessed as having capital in their home above the normal limits, but
- can prove they cannot access that income
This is likely to particularly impact family cases involving victims of domestic abuse but applies across all areas of civil law.
Changes to the means test
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).
June 2022 – we responded to the government’s consultation on the means test
May 2022 – we commissioned and published follow-up research from Professor Donald Hirsch, to inform our response to the means test review
January 2022 – the government introduced legislation to allow bereaved families at inquests to apply for legal representation through exceptional case funding (ECF) without means testing
December 2020 – we supported the Public Law Project’s successful legal challenge that led to the removal of the mortgage cap
November 2020 – we supported a successful judicial review that led to more discretion on capital 'trapped' in people's homes, with a positive impact for victims of domestic abuse
January to March 2020 – we organised focus groups around the country for practitioners to share their experiences of the means test directly with the MoJ
February 2019 – the government launched its Legal Support Action Plan, committing to review the legal aid means test
September 2018 – we responded to the government’s review of the legal aid changes in LASPO; we also commissioned further research on the means test and how the capital eligibility requirements prevent people accessing justice
- Paying for legal help when ineligible for criminal legal aid – report
- affordability of legal proceedings for those excluded from legal aid due to exceeding the capital threshold (PDF 3 MB)
- the impact of legal aid capital and contribution thresholds for victims of domestic violence
March 2018 – we commissioned economic research on the means test, showing the challenges for those on low incomes to afford legal services, and launched a campaign based on our findings:
- Disqualified from justice – civil legal aid income and contributions
Lord Chancellor’s guidance on determining financial eligibility for: