What public funding is available in family law cases?
What is public funding?
Public funding is the funding which can be available to people wishing to pursue a legal case but who may have a low income and would otherwise not be able to put forward a case because of their financial means. For family law clients there are a number of levels of assistance available. In each case there will be a ‘means’ and ‘merit’ test in order to establish if a client is eligible for public funding. Public funding will only be given if there is a strong benefit to the client. The current income limit is £2657 per month. If a person earns more than this amount per month then they will not be eligible for public funding. In some of the levels of assistance there may also be further considerations. Public funding is by no means given out without careful consideration of the facts and circumstances surrounding each case.
Who administers the funding?
The public funding is administered by the Legal Services Commission (LSC). The Commission delivers two schemes. There is the Criminal Defence service (CDS) and also the Community Legal service (CLS). These schemes were introduced under the Access to Justice Act 1999. Family Proceedings are civil proceedings and therefore fall under the CLS. A report carried out by Lord Carter resulted in the system falling under intense scrutiny and as a result it is likely that the system will experience big changes in the future. The LSC have future plans to amend the system and make the access to legal services even better for disadvantaged clients.
Levels of Assistance
The level of assistance available in family law cases is based on what type of work is being carried out by the solicitor and also on the current stage of the proceedings.
This level of assistance involves a fixed fee being awarded to a solicitor for work carried out. Legal help allows a person to initially gain advice from a solicitor on a family law matter. This level would cover an initial meeting or a telephone call. This level does not cover the issue of court proceedings. This is the lowest level of assistance which can be administered.
This level of assistance approves the use of mediation to be used as an attempt to settle a family dispute. There will always be an ‘assessment meeting’ carried out before the mediation process can take place. This meeting is necessary in order to establish that the procedure is suitable for the current problem between the parties. The process of mediation may be inadequate for some types of dispute and may be suitable for others. It is largely dependant on the facts and issues involved with the case in question.
Family Help (lower)
Family help lower gives a fixed fee to aid clients that are eligible. This level does not cover the issue of proceedings or cover the cost of representing a person in proceedings. The level does however cover work carried out before proceedings take place such as obtaining a consent order. It can be used for both public and private law cases. In order to qualify for this level the dispute must involve a ‘significance family dispute’ which means that is very likely that the dispute will end with proceedings being issued.
Family Help (higher)
This level of assistance will allow for a solicitor to be paid an hourly rate for the work they carry out. This level is used for when proceedings are issued between the parties. This level is only used when proceedings are absolutely necessary and all other attempts have been made to resolve the dispute. In order to qualify for the help there must be reasonable grounds which are evident to start proceedings. This level of public funding is not given out without careful consideration.
This level covers the costs of preparing for trial and also the cost of actually arguing the case at trial by an advocate. It is necessary in order to qualify for this funding to show that your case has a prospect of success and also that there is an element of a cost benefit.
The funding awarded by the LSC is like a loan. The fact that the money awarded is public money means that the LSC has a duty to recover the money given out whenever it can. The LSC has the authority to grant that it has the right to have first access to any property recovered from the proceedings. This is know as the ‘statutory charge’. It is important to be aware of this and to realise that the money given out by public funding is not like money given out by a charity and that there is an obligation to help retrieve any money spent.
There can be instances when public funding is required immediately because there is an emergency. Cases involving child abuse or even those involving domestic violence are examples. In cases such as this the LSC can authorise help to be given urgently. In order to qualify for this type of help there must be an ‘interest of justice’ element and the client must qualify under all the other relevant tests which are required for the others levels of assistance.