What is ‘public funding’?
Public funding, commonly known as ‘legal aid’, is state funding made available to people needing to pursue a legal case, but who are unable to afford it privately. Unfortunately, public funding has been squeezed in recent years to the extent that fewer people than ever qualify for it.
Public funding is administered by the Legal Aid Agency (LAA). In the family law context, there is a limited amount of public funding available, with different levels of financial assistance. In each case, an applicant must satisfy a ‘means’ test and a ‘merits’ test in order to be eligible for public funding. Also, public funding will only be awarded if the case is ‘within scope’, ie. a case that would be covered by legal aid.
What types of cases are ‘within scope’?
The only types of family cases where an individual may qualify for legal aid are:
- Domestic abuse
- Social service involvement with your children
- Where the person needing legal aid is a child under 18 who is a party to family proceedings, and
- International and domestic child abduction
What is the income limit?
To satisfy the means test, the current gross income limit is £2,657 per month, above which the individual may not be eligible for public funding. In some levels of financial assistance, there may also be further considerations, so specialist legal advice should be obtained.
Levels of Assistance
The levels of financial assistance available in family law is based on the type of case and the current stage of the proceedings.
This is the lowest level of assistance involving a fixed fee being paid to the solicitor for the work carried out. It allows the individual to take initial advice from a solicitor on a family law matter, and would typically cover an initial meeting or telephone call, but it does not cover the issue of court proceedings.
This level of assistance facilitates the use of mediation between the parties to settle a family dispute. Mediation will be preceded by an ‘assessment meeting’ to establish whether mediation is in fact suitable in the circumstances. This is largely dependent on the facts of the case and the issues involved, though mediation is actively encouraged.
Family Help (lower)
Family help (lower) provides a fixed fee to help eligible clients. It covers work carried out before proceedings begin, such as obtaining a consent order, but does not cover the issue of proceedings or the cost of representation. To qualify, the dispute must involve a ‘significant family dispute’ such that it’s very likely proceedings will eventually need to be issued.
Family Help (higher)
This provides funding for a solicitor to be paid an hourly rate for the work they carry out, and covers the cost of issuing proceedings. However, this financial assistance is only awarded when proceedings are absolutely necessary and all other attempts to try to resolve the dispute have been exhausted.
This covers the costs of preparing for trial and the cost of full representation and advocacy at the trial. One of the qualifying requirements is that the case must have at least a good prospect of success; or a borderline prospect of success and it is of significant wider public interest or it’s a case with overwhelming importance to the individual.
In some cases, immediate ‘emergency’ public funding is required immediately, for instance, in cases involving child abuse and/or domestic violence. To qualify for emergency funding, an ‘interests of justice’ test must be satisfied. You must also produce evidence of abuse to secure public funding in cases of domestic abuse or violence. There is a wide range of documentary evidence that will be acceptable to the LAA, ranging from a GP’s letter, a police crime number or report and evidence from a domestic violence support service.
The Statutory Charge
Public funding is not freely given, it is akin to a loan. The fact that the money awarded is public money means that the LSC has a duty to recover the money where it can do so. It does this by way of a ‘statutory charge’, which means you may have to repay some or all of the public funding awarded to you out of any money or property recovered in the proceedings. Your solicitor will explain this to you if you are entitled to public funding in your case.