Unit 4: Legal Aid

• Legal aid is where the state pays for legal advice and representation for a person
• A legal aid representative works for the client, not the arm of the state that is paying them
• Only firms with a legal aid contract can provide advice under legal aid
• There are strict rules governing payment and in most circumstances, only ‘fixed fees’ are paid to the representative
• The Legal Aid Agency (LAA) administers the scheme in England and Wales
• There is a different system in Scotland and Northern Ireland

Legal aid normally provides a fixed fee to cover work done by the solicitor or adviser. Particularly complex or time consuming cases may attract an hourly rate, but the rules for this are very restrictive. Exceptions include Detained Asylum Casework, Unaccompanied Asylum Seeking Children (UASCs) and Judicial Review work, which are always paid on hourly rates.

Legal aid also pays disbursements for things like:

• Interpreting
• Translation of documents
• Medical records, medical reports, etc.
• Other expert witness reports

There is a limit on disbursements, and extensions to this limit must be justified. You cannot get disbursements for application fees and the immigration health surcharge.

In asylum claims, disbursements can run into thousands of pounds. A client who is not receiving legal aid will need to pay for these on top of any legal fees.

Conventional legal aid is restricted to certain situations or types of case (matters) - these are defined in Schedule 1 of the Legal Aid, Sentencing and Punishment of Offenders Act 2012. These are 'in-scope' matters and they include:

• Protection claims (including asylum claims and Article 3 medical cases, but does not include family reunion applications)
• Trafficking cases, but only where a positive 'reasonable grounds' or 'conclusive grounds' decision has been made by the Home Office
• Domestic Violence cases, in some circumstances
• Immigration Detention cases (e.g. bail applications)
• Immigration and nationality applications for Separated Children*
• Judicial Review, subject to restrictions

It is sometimes possible to get 'Exceptional Case Funding' for matters that are out of scope, if Human Rights or EU Rights are involved

You do not need to be regulated to help someone to apply for ECF, according to the IAA. If you are successful, you can then refer them to a Legal Aid provider.

The forms to apply for ECF can be found here.

The Public Law Project publish guides on how to get ECF for different legal matters including immigration cases. They also have a toolkit for setting up ECF clinics.

Legal Aid is intended for people who can't afford to pay for essential legal advice or representation. As it is public money, this is where the bureaucracy really kicks in!

To qualify for legal aid, all your worldly wealth must be assessed against:

• A gross income limit
• A disposable income limit, and
• A disposable capital limit

If you exceed one of these limits then you do not qualify. 'All your worldly wealth' includes things like jewellery and equity in your home.

You can find these limits on GOV.UK. But of course, the Legal Aid Agency doesn't trust you to state your wealth. It expects you to provide evidence.

There are some benefits that passport you, notably asylum support and section 4 support - if you can prove that you receive them, you don't need to prove anything else. A full list of passporting benefits can be found via the link above.

This is one area where charities can really help. If you are a legal aid adviser, taking on a case before evidence of means is produced is a risk - your firm may not get paid for the work that you do, putting your job at risk. Gathering evidence of means can be time-consuming. If cases come to you with evidence of means already on file, that is a chunk of work you don't have to worry about, giving you more time to focus on your client's case, or take on other cases.

The Means Assessment Guidance includes a table of evidence required at page 206. Note: this guidance is updated regularly. If the hyperlink does not work, the updated document should be available through GOV.UK (scroll down!)

If your client is receiving a passporting benefit, then evidence of that benefit (as per the table) is enough.

If your client is destitute, they will need evidence covering the month up until signing the legal aid form. The evidence should include:

• Bank statements for all accounts
• Letters from anyone providing any support or accommodation - there is a useful Third party financial support evidence Pro-forma that can be downloaded from GOV.UK
• Evidence of any income entering their bank account(s) in the last month