The costs of legal proceedings can be daunting for many, especially those seeking divorce or other family law matters. While there are resources and support out there to assist eligible individuals, it can often be difficult to know exactly how these resources work or how to access them.
Although Dutton Gregory only offer legal aid for very limited family law circumstances, Trainee Solicitor Tom Whatley answers some commonly asked questions about funding support available and how this support can assist those looking for legal assistance.
Your Questions Answered
What is legal aid?
The gov.uk website summarises legal aid as something which “can help to meet the costs of legal advice, family mediation and representation in a court or tribunal”. This is a generalisation of what is arguably a very complex scheme that has been the subject of numerous revisions and amendments in recent years. These revisions have often resulted in those who most need this type of legal assistance not knowing how it works or how to access it.
To give a more specific definition, legal aid is the use of public funds to help pay for legal advice to those who would otherwise be unable to afford it.
This service is available in both criminal and civil matters, which includes private law disputes. Different areas of law have different requirements and tests, including public family law proceedings, where the Local Authority has applied for a Care Order.
For this article, I will only be focusing on the requirements for private family law disputes. In order to access legal aid, an individual must first meet certain criteria assessed by what is known as a ‘means test’, the particular case must satisfy the relevant ‘merits criteria’.
What is means testing?
Means testing relates to the financial eligibility of an individual to be able to access legal aid.
There are different criteria to be met, depending on whether the services required fall under the bracket of controlled work (known as ‘Legal help’) and family mediation or licensed work (known as ‘Legal Aid’).
Legal help covers work outside of, and prior to court proceedings, with legal aid covering work required following the issue of court proceedings.
Legal help can be provided by Civil Legal Aid or a firm/organisation with a legal aid contract in the relevant area of law. This includes the Civil Legal Advice (CLA) Gateway which is a national advice line used to assess an individual’s financial eligibility, Legal Help and Help at Court (which relates to help and advocacy at a specific hearing). A guide regarding Legal Help and family mediation can be found here.
Legal aid can only be provided by a firm/organisation with a legal aid contract in the relevant area of law. This type of work relates primarily to legal representation in terms of litigation, advocacy and steps related to proceedings. A guide regarding licensed work can be found here.
In terms of specific figures relating to eligibility, your gross monthly income will need to be £2,567 or less.
There are additional provisions where the applicant has more than 4 dependants in which case £222 can be added to the previous figure per additional child. There is a limit of £733 for disposable income, with deductions including a fixed amount for dependants, work expenses and a limit on housing costs. There is a disposable capital the limit of £8,000, however, exemptions can be claimed for a primary dwelling if it’s an asset in dispute and is the matrimonial home. The exception is immigration matters which are capped at £3,000. You will not be required to make any contributions to funding for controlled work and mediation but will need to make contributions for licensed work if your disposable income per month exceeds £315 and/or capital exceeds £3,000. An eligibility calculator can be accessed here.
What are merits criteria?
Before submitting an application to receive legal aid, you will need to consider the merits of your case.
This relates to the likelihood of success and the benefit you are likely to receive from pursuing the claim. Wherever possible, emotion must be cast aside when considering this. It may also be worth seeking the advice of a legal professional for an independent assessment of the merits of the case.
The current merits criteria requires that a case will have to have “sufficient prospects of success” in order to qualify for legal aid. Cases where prospects of success exceed 50% will automatically satisfy the merits criteria.
Cases that don’t fit this criteria are split into three distinct categories:
- Marginal - where there is more than a 45% chance of succeeding but less than a 50% chance;
- Borderline - means that it is not possible to assess prospects due to disputed law, fact, or expert evidence;
- Poor - where prospects are below 45%.
Unfortunately, where there is an assessment that prospects are poor, the merits criteria will not be met and legal aid will not be granted.
Where prospects are classified as marginal or borderline, the test can still be met where the:
- Case is of significant wider interest;
- Case is one with overwhelming importance to the individual;
- In certain proceedings, the substance of the case relates to a breach of Convention rights (only available in certain cases).
It goes without saying that it can be difficult for someone without relevant legal training to assess the likely prospects of success for their claim. In this event, you can use the government’s legal aid checker. Alternatively, you should discuss your matter with a legal practitioner who will be able to provide you with a better indication as to its merits.
In an event of a dispute over arrangements for a child, this will almost always satisfy the merits means test. A dispute over matrimonial finances will also take into account the value of the assets in dispute, against the costs of pursuing an application.
When is legal aid available in relation to a family matter?
The Legal Aid Sentencing and Punishment of Offenders Act (“LASPOA”) came into effect on 1 April 2013 and limits the range of family cases that legal aid is be available for. However, following harsh criticism, revisions to the regulations were brought in on 8 January 2018 to broaden the scope of LASPOA.
In short, legal aid is now available in family matters concerning:
- Domestic violence (under Part IV of the Family Law Act 1996), including an application for a non-molestation order and/or occupation order.
- Private family cases where there is evidence of domestic abuse.
- Private law children cases where there is evidence of child abuse or genuine child protection concerns.
- Public family law proceedings regarding the protection of children.
- Representation for children who are made a party to private family proceedings.
- Child abduction.
- Forced marriage protection order proceedings.
- Legal advice in support of mediation where:
- At least one party is eligible for legal aid then the total cost of the mediation information and assessment meeting (“MIAM”) attendance can be covered; and
- As of November 2014, the legal aid agency will also fund one further mediation session where one of the parties is eligible for legal aid.
Essentially, before considering means or merits testing, unless your application relates to an occupation order or non-molestation order, evidence will need to be provided of domestic abuse or child abuse.
Domestic abuse is defined as “any incident or pattern of incidents of controlling, coercive or threatening behaviour, violence or abuse between those aged 16 or over who are or have been intimate partners or family members regardless of gender or sexuality.”
What evidence of domestic or child abuse is needed for legal aid?
The Legal Aid Agency have set out what will need to be provided as evidence of domestic abuse or child abuse.
Firstly, you will need to evidence that you or your children are/were the victims of either domestic abuse, violence or financial control such as being prevented access to joint bank accounts.
Here is a short list of the different types of evidence that can be used in support of an application for legal aid:
- Evidence that the other person has been arrested for a relevant domestic violence offence.
- A relevant police caution for a domestic violence offence.
- Evidence of relevant criminal proceedings for a domestic violence offence which have not concluded.
- A relevant conviction for a domestic violence offence.
- A domestic violence protection notice issued under section 24 of the Crime and Security Act 2010 against the other person.
- Police bail for domestic violence offence.
- A relevant protective injunction.
- A copy of a finding of fact, made in proceedings in the United Kingdom, that there has been domestic violence by the other person.
- An expert report produced as evidence in proceedings in the United Kingdom for the benefit of a court or tribunal confirming that a person with whom the other person is or was in a family relationship, was assessed as being, or at risk of being, a victim of domestic violence by the other person.
- Letter or report from an Appropriate Health Professional.
- Multi-Agency risk assessment conference.
- Letter from an independent domestic violence advisor.
- Letter from an independent sexual violence advisor.
- Letter from a local authority or housing association.
- Letter from organisation providing domestic violence support services.
- Domestic violence support organisation refusal of admission to a refuge.
A more detailed list with relevant information for each document can be found here.
Evidence can be obtained from:
- The courts
- The police
- A multi-agency risk assessment conference (MARAC)
- Social services
- A health professional, for example: a doctor, nurse, midwife, psychologist or health visitor
- A refuge manager
- A domestic violence support service
- Your bank, for example credit card accounts, loan documents and statements
- Your employer, or education or training provider
- The provider of any benefits you’ve received
Sample letters that can be sent to the police, courts or medical and social services where you have been a victim of domestic abuse can be found here. Sample letters to be sent to the same organisations where your children have been victims of domestic abuse can be found here.
Once you have obtained the relevant evidence in support of your claim, this should be provided to your legal representative to be submitted alongside your application for legal aid.
A more detailed consideration of each of the above, as well as information regarding to their respective merits and means testing criteria, can be found here.
Who provides legal aid?
The government has produced a directory of legal aid providers in England and Wales which is updated on a monthly basis.
Once you have sourced a legal representative who offers legal aid, they will be able to file an application with the Legal Aid Agency on your behalf to obtain funding. If you qualify, their costs will be paid for directly by the government. You will be granted a Legal Aid Certificate.
In order for the application to be submitted, you will need to provide your legal representative with the following documents for both yourself and your partner (where appropriate):
- Details of your benefits including benefit statements;
- Details of your income, savings and spending including pay slips and bank statements;
- National insurance numbers.
In relation to your case, you will also need to provide:
What legal aid does Dutton Gregory offer?
Legal aid for family law matters is only available in very limited circumstances at Dutton Gregory.
We offer legal aid for advice and representation in legal proceedings where the Children’s Services Department are involved and there are concerns about child protection. If you need assistance or advice about this, please contact our Childcare Department.
Unfortunately, Dutton Gregory does not undertake legal aid work related to private family law disputes in respect of children, divorce and so on.
I don’t meet the required Means/Merits Criteria, what else can I do?
Legal Expenses Insurance
You may wish to consider the possibility of purchasing legal expenses insurance. These types of insurance policy can cover costs associated with obtaining legal advice and funding an ongoing case.
Before purchasing a specific legal expenses policy, you should consider if any of your existing insurance policies include legal expenses cover, in which case you may be able to access this to fund your case. Insurance policies which usually include a legal expenses clause are car and household insurance. These types of policies are generally referred to as ‘before the event’ insurance as they will have been purchased in advance of the insured becoming involved in proceedings. Be sure to check the limitations on any such terms by contacting your insurer direct before proceeding with a claim.
If you find yourself in a situation whereby you become involved in legal proceedings but do not have the benefit of a pre-existing legal expenses policy, then you may wish to consider purchasing ‘after the event’ insurance.
This type of insurance can be purchased for virtually all types of litigation bar matrimonial or criminal proceedings. This will need to be considered if you are seeking insurance to fund a family related matter, such as divorce. There are many different options available in terms of what you wish to be covered by your chosen policy, whether that be to cover all costs of funding your case or particular elements such as disbursements. In some circumstances, it may be possible for your solicitors to recover their costs directly from your insurance provider. This should be discussed with both your solicitors and insurer when considering arrangements for the settlement of fees.
Some solicitor firms may be willing to enter into a fee arrangement. This could either be an arrangement whereby you pay a lesser or greater fee dependant on whether your case succeeds or not, or an arrangement whereby the solicitors recover their fees from any award made in your favour.
Examples of fee arrangement offered by solicitors are Conditional Fee Arrangements or Damages Based Agreements, where the legal representative’s fees are paid only upon a specified outcome. A common example of such an arrangement is ‘no win no fee’. At present these types of arrangements are not available to family related matters.
An alternative to this that is available to family related matters is a Sears Tooth Agreement. This is an agreement made by way of deed to assign the client’s settlement, or part of it to the solicitor, to enable them to cover their costs incurred in acting for the client and to be repaid in full upon conclusion of the case. Should you wish to enter into such an agreement, this should be discussed with your solicitor directly during the early stages of the matter. It will be at the discretion of each firm as to whether such an agreement will be facilitated.
Third party litigation funding
Third party litigation funding refers to a situation where a third party agrees to finance all or part of the costs of the litigation.
The provider will usually recoup a fee from the proceeds of any financial award made in favour of the borrower. Within England and Wales, funding providers are governed by a code of conduct created and enforced by the Association of Litigation Funders, so you can be confident that any arrangements made with such companies will be above board and appropriately protected.
This type of funding can be used in conjunction with alternative methods of funding, such as fee arrangements or ‘after the event’ insurance.
Generally speaking, litigation funders will only look to fund applicants that they will wish to become involved. This usually means where there is a reasonable chance of a monetary award being available at the end of the litigation from which they can recoup their fees. There are, however, some circumstances whereby the funders will fund a respondent, for example, where the defendant has a sizeable counterclaim. Any litigation funder will discuss your position with you before providing funding, at which point they will be able to advise you whether you will be eligible for funding.
Litigation funding can be used to cover all, or particular elements, of funding your case. This can include covering the costs of your solicitor’s or barrister’s fees, disbursements or tribunal/court fees. Each provider will be able to advise you of the funding that they have available.
The funder’s ability to recover their fees will be contingent upon the party being funded recovering sufficient monies in order to be able to repay the fee.
Some other alternatives to legal funding include utilising credit cards or borrowing from relatives/friends.
Please ensure that if borrowing or obtaining credit to cover your legal fees, that you have adequate funds in order to be able to meet any agreed repayment plans.
The court is at liberty to make a broad range of costs orders in favour of the successful party in litigation. This can mean that the succeeding party will be able to recoup some, if not all, of the costs they have incurred from the other side. It should be noted that the starting point for costs orders is set out Part 28 of the Family Procedure Rules, which confirms that each party should expect to pay their own costs with the court deciding when it will be appropriate to depart from this. On this basis, you should not enter into proceedings with a view that the other side will be ordered to pay your costs and accordingly should be in a position to pay your costs irrespective of the final judgment.
The court also has discretion to make legal services payment orders in circumstances where it can be shown that one party to the litigation is at a significant financial disadvantage in comparison to the other side. There are several different tests developed through case law over recent years and, more recently, set out within sections 22ZA & B of the Matrimonial Causes Act 1973 which guide the courts in deciding whether such an order will be appropriate. One example of a legal services order is a ‘Pound for Pound’ order.
If you believe that the other side in litigation has unreasonably driven up their legal costs in a bid to avoid their liability to pay you or to increase any costs order that is likely to be made against you, then you may wish to consider seeking a ‘Pound for Pound’ order.
The case of LKH v TQA AL Z provides an example of a ‘Pound for Pound’ order. In this case, the husband had been ordered to pay significant interim maintenance to the wife but defaulted on his obligations which lead to arrears of £230,000 being outstanding at the time of judgment. Despite the arrears, the husband had been able to pay his newly instructed solicitors a total of £95,000. On this basis, the judge ordered that moving forward, for each £1 spent on his own legal fees, the husband would have to pay the same to the wife. Such orders are rare in practice and the threshold for obtaining such an order will be high given the onerous effect that it will have on the party made subject to it. It is advisable that you discuss the viability of obtaining a legal services order when meeting with your solicitor at the outset of the case.
Should you wish to discuss your options in terms of funding a family related matter please do not hesitate to contact our Family department on:
📞 02380 221344 / 01202 315005