Legal Aid And Family Matters: Separating Fact From Fiction
Posted on 10th June 2020
Before 2013, if you qualified for legal aid financially then it was available for initial advice on almost anything and everything. Your local family solicitors who have been in the business for a while will remember what was known as ‘the Green form’ which, according to information found on website of The Law Society Gazette was introduced as far back as 1973!
If you were unable to resolve the matter and proceedings were needed then you could apply for a full certificate, do the work, send in a bill and get paid without too much difficulty. Although there were some changes over the years, legal aid remained available until the introduction of the Legal Aid, Sentencing and Punishment of Offenders Act 2012, which came into effect in April 2013 and which brought sweeping changes to legal aid both for the public and legal aid practitioners. Here your local family solicitors will try and unravel the mystery which is legal aid.
So, in relation to family matters, what is it still available for?
The are two common beliefs – one that legal aid has gone altogether, and the other that it is still available for all family matters as long as someone is on benefits. This section will deal with what types of matter legal aid is still available for and in what circumstances provided someone remains eligible financially - financial eligibility will be dealt with separately.
If a family is involved with the local authority (i.e. a Social Worker from the Children’s Services Team) and the local authority applies for a care order or supervision order in respect of a child, then legal aid is available for a parent and this is not means tested.
If a person is seeking an order for protection, namely :-
• A non-molestation order (injunction)
• An occupation order
• A forced marriage protection order
then legal aid is available provided a person qualifies financially
If a person is seeking legal aid for another form of family matter, such as child arrangements, divorce or financial settlement or cohabitation disputes, then legal aid can still be available if they can provide some evidence that there has been domestic abuse at the hands of the person who will be the opponent, or in some cases that a child has been harmed or is at risk of harm by the conduct of the opponent. They will also have to qualify financially.
Any evidence of domestic abuse / harm has to be in the format specified by the Legal Aid Agency but can be provided by:-
• The Courts – eg a copy of a restraining order or non-molestation order
• The police
• Multi-Agency Risk Assessment conference (MARAC)
• Social Services
• A health professional
• A Women’s Refuge
• A domestic violence support agency
• Your employer, education or training provider
• The provider of any benefits / your bank (in cases of financial control)
The person who is applying will not always be the person who was subject to abuse. For example, if a grandparent is applying for a child arrangements order, and there has been domestic abuse suffered by one parent against the other, which is documented within child protection conference minutes, then the grandparent can apply for legal aid on the basis that one of the respondents to the case has been the perpetrator of abuse.
I’m working so I won’t be eligible for legal aid – right?
Not necessarily. Financial eligibility is calculated on disposable income (ie income from all sources less housing costs and other essential outgoings and allowances for any dependent children), and capital (ie interest in property, savings, investments etc).
The Legal Aid Agency really does take into account income from all sources – save for payments such as DLA and Care Allowance due to the nature of what they are paid for.
So we are talking income from employment, child benefit, tax credits, pension, child maintenance, spousal maintenance, student loans etc. Any allowable deductions are made including a set amount for any dependent children, and the figure we are left with is disposable income. If a person is under the income cut-off as is currently in force then they will qualify on an income basis. Therefore, we can have someone who works full-time, with lower tax credits, who will be eligible on disposable income due to the level of allowable deductions, on the one hand and on the other we could have someone who is reliant on benefits but with very low outgoings who does not qualify on income.
In may cases however, the Legal Aid Agency will make an applicant an offer of legal aid – which means a certificate can be granted if a person makes a contribution towards their costs. The contribution can be quite high and some applicants then choose to fund their solicitors privately.
Again, capital from all sources is taken into account. Whether this is interest in property, bank accounts, shares, investments etc. There are some situations when only part of the assets are taken into account, for example there is evidence that assets are in dispute, or a property is jointly owned. In cases involving a home, the Agency will take into account the equity after the maximum mortgage allowance has been deducted from the value. If a property is jointly owned, the applicant is said to hold 50% of the equity as capital.
It has been reported in law journals and media recently that a woman is appealing against the decision not to grant her legal aid because she is joint owner of a property along with her former partner who is alleged to have been abusive. This lady resides in the house with the children. There are ongoing proceedings involving children and an application that the house is sold, neither of which the woman can fund privately as her income is through Universal Credit. We therefore have the issue of an alleged victim of domestic abuse having to represent herself against the perpetrator. Clearly, due to her income, she will be unable to borrow sufficient funds to remortgage and also ‘buy out’ her former partner’s interest and settle property matters that way.
For the purposes of the legal aid assessment therefore, even if she is allocated 50% of the current equity as a result of this being a joint property, her capital is above the allowed limit. This lady may well qualify on income but fails to qualify on capital.
With the assistance of the Public Law Project the matter has been taken to the High Court and a decision awaited.
One last thing to add is that if a person applying for legal aid does have capital, the Agency can ask for a contribution to be made from this capital.
Legal Aid if free though – isn’t it?
In a lot of cases, no. We have mentioned above possible contributions from capital and income to assist in the funding of the case.
If the recipient of legal aid receives a financial benefit from the case then part or all of these funds will be repaid to the Agency towards the costs of the case. Any monies from any settlement will be paid to the solicitors who will liaise with the Agency with regards to costs before any monies can be released to a Client.
What many people do not realise is that if legal aid has been provided to a recipient, the costs of any linked cases will also have to be repaid. For example, if a recipient of legal aid is involved in children proceedings, and these conclude, but some time later legal aid is also granted for financial settlement on divorce, then potentially the costs of the children matter will also have to be repaid (depending on the level of settlement received).
My former partner/spouse has legal aid so they will drag matters on
Quite simply, it is not up to them. The Courts set timetables for the running of a case. Also, if a report is not in favour of the person who is in receipt of legal aid, that person will have to persuade the Legal Aid Agency to continue to fund the case and will have to justify why they have not agreed to settle or conclude proceedings by way of a final order.
Your local solicitors at MG Legal do not provide legal aid services but rest assured the Family Team will always inform a new enquiry whether we think legal aid may be available and what the person enquiring needs to do next.
For any Family Law enquiries our Family Department can be contacted on 01524 581306 or by completing our online enquiry form here.
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