Legal Aid Flashcards

(18 cards)

1
Q

In overview, how can a firm of solicitors carry out legal aid work?

A

To carry out legal aid work, a firm of solicitors must have a contract with the Legal Aid Agency which covers the type of work relevant to the client’s case, eg criminal defence work, care proceedings, immigration and so on

  • These firms are subject to an annual audit by the Legal Aid Agency
  • Having a contract doesn’t oblige the firm to act for a client if it is unremunerative

A firm must consider from the outset if a client might be eligible for legal aid

  • If a firm which doesn’t undertake legal aid work thinks a client might be eligible, they should tell them and perhaps suggest they seek other advice

When acting for a legal aid client, they must inform the court and other parties that the client has the benefit of legal aid

  • They must also inform the LAA if the client acts unreasonably or has given inaccurate or misleading information to the LAA (overrides solicitor’s duty of confidentiality to the client)

At the end of the case, solicitor will claim their costs from the LAA

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2
Q

Civil legal aid is only available in limited circumstances.

What are the 2 categories of civil legal aid and the 3 forms of civil services that fall within them?

A

Civil legal aid falls into 2 categories:

  • Controlled work – solicitor determines the client’s eligibility
  • Licensed work – authorised by LAA on a case-by-case basis

Within these categories, there are 3 forms of civil services

  • Legal help
  • Help at court
  • Legal representation
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3
Q

What is ‘Legal Help?’

A

Covers the solicitor giving basic advice and limited steps following it, like drafting a letter

  • Does not include issuing court proceedings

Controlled work

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4
Q

What is ‘Help at Court?’

A

Covers advice and assistance, including advocacy

  • Work must be in relation to a particular hearing, rather than representation in the case generally

Controlled work

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5
Q

What is ‘Legal Representation?’

A

Available to clients who are a party to proceedings or are contemplating starting proceedings + can include representation before the court

Licensed work, so an application to the LAA is needed

Can be granted on an investigative or full basis

  • Investigative – covers the solicitor’s work in assessing the strength of the case
  • Full – covers the issuing and conduct of proceedings, including advocacy at the final hearing

LAA usually places limitations on the legal aid certificate and if the case needs more work, the solicitor must apply for an amendment to the certificate and/or an increase on any cost’s limitation

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6
Q

What is the scope of civil legal aid? To what cases does it apply and what tests are needed to be satisfied for it to be available?

A

Legal aid only available for certain types of case:

  • Where client faces homelessness
  • Family cases where the client is a victim of domestic abuse
  • Where client subject to discrimination
  • Immigration cases and care proceedings

Where a case falls outside the scope of legal aid, they may be able to obtain funding if the circumstances are ‘exceptional

  • Where a refusal would breach a client’s human rights

Whether within the scope of legal aid or suitable for exceptional case funding, the client must meet:

  • The merits test
  • The means test
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7
Q

What is the merits test for civil legal aid? How does it differ for the different forms of civil services?

A

Legal Help and Help at Court - ‘sufficient benefit test’ - legal aid only available if there is a sufficient benefit to the client, in all the circumstances, to justify the work being carried out

Legal Representation – prospects of success must be 50% or above + there is either a generic or specific merits test, depending on type of case:

  • Monetary claim – balancing of the damages that are likely to be received against the likely costs involved
  • Non-monetary case – whether benefits to be gained justify the likely cost, such that a reasonable privately paying client would proceed (reasonable privately paying client test)

Legal Representation will be refused if there is other funding available to the client or if the case is suitable for a conditional fee agreement

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8
Q

What is the means test for civil legal aid?

A

Capital and income (combined with any resources of any partner) must not exceed certain limits

1) Capital limit is £8000 (£3000 for immigration cases)

  • If this is exceeded, no need to consider income as they won’t qualify

2a) Income for benefit clients – where client in receipt of certain welfare benefits, they pass the income test automatically, but their capital will be assessed too

2b) Income for other clients

  • If gross income exceeds £2657, they won’t qualify
  • If gross income below this, deductions are made for circumstances and living expenses – will only qualify if monthly disposable income is less than £733

For licensed work, where disposable income is above £315 a month or their capital is above £3000, the client will have to contribute towards their legal fees

  • Contributions from income will be via monthly payments
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9
Q

What is the statutory charge in civil legal aid?

A

If the client benefits financially from the case, any money or property they receive can be used in repayment of the solicitor’s fees – this is the statutory charge

  • Client must have been wholly or partially successful in proceedings or obtained an out-of-court settlement
  • Client usually in receipt of Legal Representation

LAA will attempt to recoup money paid on client’s behalf in all cases

  • 1) Claim money paid pursuant to a costs order in client’s favour
  • 2) If a shortfall remains, they will retain any contribution paid by the client
  • 3) If a deficit remains, they will apply money recovered in proceedings by the client

Solicitor passes any money payable to the client under a court order/out of court settlement to LAA immediately

Client should be made fully aware of the statutory charge and reminded of it throughout their case

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10
Q

Criminal legal aid is also available in certain instances.

How does criminal legal aid apply to advice given at the police station?

A

Anyone attending the PS (whether under arrest or voluntarily) is entitled to free legal advice, regardless of their means

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11
Q

What is the duty solicitor scheme?

A

A duty solicitor will be on a rota to attend an MC on given days to advise Ds who don’t have their own solicitor, but need legal advice/representation

  • Works the same at the police station

Solicitors acting under this scheme cannot refuse instructions on the basis that they are unremunerative

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12
Q

Criminal legal aid will only be granted for the fees of criminal proceedings where 2 tests are passed to justify public funding.

What are the names of the 2 tests?

A

The interests of justice test

The means test

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13
Q

How does the interests of justice test work?

A

Assesses the merits of the case and various factors considered:

  • Whether the individual is likely to lose their liberty, livelihood or suffer serious damage to their reputation
  • Whether the proceedings may involve a substantial question of law
  • Whether D may be unable to understand the proceedings or state their own case
  • Whether proceedings may involve tracing, interviewing or expert cross-examination of witnesses
  • Whether it is in the interests of another person that D is represented - Does not mean D’s family and generally refers to a prosecution witness in a case where it is inappropriate for D to cross-examine them
  • If there is ‘some other reason’ making it in the interests of justice for them to receive legal aid

The more serious or complex the proceedings, the more likely it is that D will satisfy the test

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14
Q

When is the interests of justice test automatically met/passed?

A

The case is in the Crown Court, except for an appeal against sentence/conviction

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15
Q

Who automatically passes the means test?

A

Under 18s and those on certain welfare benefits

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16
Q

What is the 1st part of the means test or the ‘basic’ means test?

A

All other clients start with their gross annual income, which is adjusted according to whether they have a partner or children – this is a basic means test:

Adjusted income:

£12475 or less

  • MC – eligible
  • CC – eligible

More than £12475, less than £22325

  • MC – full means test carried out
  • CC – full means test carried out

£22325 and above

  • MC – not eligible
  • CC – full means test carried out
17
Q

What is the 2nd part of the means or the ‘full’ means test?

A

The full means test takes account of family circumstances and deducts essential expenses, to reach a disposable income figure

  • For MC – must have annual disposable income of £3398 or less
  • For CC – disposable income of more than £3398 and less than £37500 = client may have to contribute towards the legal fees
18
Q

If the interests of justice and means tests are passed, what happens next?

A

Successfully applying for criminal legal aid means that a representation order is issued and sent to the solicitor, meaning they can begin incurring costs on the client’s behalf

  • Terms of RO can be extended to cover appeal costs for example