Legal aid

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. 

Read our response

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.

Read Professor Hirsch’s report

Webinars on the means test

Watch our webinars to find out more about the proposals and how they’ll affect your practice:

Background

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:

Early changes

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. 

Exceptional case funding for bereaved families at inquests

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

Read the lord chancellor's guidance on determining financial eligibility for controlled work and family mediation

Mortgages and certain compensation-scheme payments no longer have to be considered when assessing who is eligible for legal aid

Since January 2021, legal aid providers can disregard the following when assessing how much legal aid someone is entitled to:

These changes were introduced through the Civil Legal Aid (Financial Resources and Payment for Services) (Amendment) Regulations 2020.

The director of legal aid casework has the discretion to ignore capital that is ‘trapped’ in a home

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 [2020] 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. 

Read the Public Law Project’s guidance on trapped capital

Read our research on why one in five victims of abuse does not take up offers of legal aid 

Our view

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 [2017] 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).

Timeline

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

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:

Useful resources

Civil legal aid: means testing – GOV.UK

Eligibility and ‘trapped’ capital – Public Law Project guidance for legal aid providers

Lord Chancellor’s guidance on determining financial eligibility for:

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