Legal aid

Legal aid means test review

What's changing

12 Sep 2023

5 minutes read

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At least six million more people will be eligible for free legal advice under government proposals.

Legal aid is a lifeline for people, usually living in poverty, to help in moments of crisis such as when they are facing eviction or seeking protection for themselves and their children from a violent partner. However, to access legal aid people must undertake a means test.

In 2018, our research showed that the means test was disqualifying many people who couldn’t afford to pay for a lawyer. Since then, we’ve played a key role campaigning for changes to the system to make justice affordable for everyone.

Widened eligibility to free legal advice is an important step in the right direction. But for meaningful change, the government needs to take urgent action to:

stop inflation undoing this progress
ensure people can find legal aid providers where they live

Overview

Over the next two years, mean-test free legal aid will be extended to:

anyone under the age of 18 who needs legal representation
parents challenging traumatic and difficult medical decisions such as withdrawal of their child’s life support
people defending themselves in the Crown Court

The changes go a long way to widening access to justice for many people on low incomes who were excluded from free legal advice under the old system.

The thresholds would be reviewed every three years.

The changes are planned in four stages:

non-means tested areas of civil legal aid
civil means test and contributory system
new criminal legal aid means tests
removal of Crown Court capital passporting for benefits recipients who are homeowners

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Our view

We’re pleased the government has taken steps to widen who can qualify for legal aid, and listened to our concerns on how the original proposals would disadvantage single parents.

However, all the thresholds need to be increased regularly with inflation. Without this, the cost-of-living crisis will mean more and more people are going to fall back through the justice gap.

Prices have risen by 15% since early 2022, but the government proposals are based on the cost of living in 2019/20 and may not be updated again before 2027.

We welcome the continued passporting of victims of abuse on universal credit seeking a protective order for themselves and their children. However, we’d also like to see this go further with non-means tested legal aid in these cases and universal credit considered a passporting benefit in all cases.

Any revisions should make sure the means test is:

future proofed – for example, uprated annually in line with inflation
simple for both practitioners and the Legal Aid Agency to administer
simple for the public to understand

What does affordable justice mean?

To see the infographic about this topic, please refer to the live page.

Why the system needs review

The legal aid means test has not been updated in line with inflation since 2009 – since then, prices have risen by 40%. This means that fewer people are eligible for legal aid each year.

In 2018, research we commissioned into the legal aid means test showed that:

people on incomes already 10% to 30% below the minimum income standard were being excluded from legal aid
some people face barriers to getting 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

Read Professor Hirsch’s report

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

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.

Expand all

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:

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 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 tips on trapped capital from the LAA

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

Timeline

May 2023 – we welcome the government’s plans to widen legal aid eligibility

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, which highlighted issues for single parents in the original proposals

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: