Is your client eligible for legal aid?

As so many firms have now withdrawn from legal aid, due to burdensome procedures and increasingly unrealistic fees, many practitioners feel less confident in identifying eligible clients. However, being able to spot indicators of eligibility can enable a potentially eligible client to make an informed choice about whether to pay privately or try to find a firm that offers legal aid and is able to take their case.

Scope of family legal aid

The scope of legal aid is set out in Schedule 1 to the Legal Aid, Sentencing and Punishment of Offenders Act 2012. It removed most private family law from scope unless the applicant can provide prescribed evidence of domestic or child abuse, often called “gateway evidence”.

It is important to remember that domestic abuse itself is in scope and an applicant does not need to produce documentary evidence of previous abuse.

No evidence of abuse is required for legally-aided mediation.

Financial eligibility – the basics

Most legal aid is means-tested but in family law there are some important exceptions:

• under 18s for representation in proceedings
• parents or those with parental responsibility for matters concerning withdrawal or withholding of life-sustaining treatment
• certain Children Act 1989 cases – broadly child protection cases, see the Civil Legal Aid (Financial Resources and Payment for Services) Regulations 2013, reg 5(2)
• legal representation in parental placement and adoption cases
• legal representation in parental guardianship cases
• advice where the local authority has served notice of intention to issue proceedings and representation in proceedings under section 31 of the Children Act 1989
• a mediation information assessment meeting (MIAM) and the first mediation session for a party to mediation if the other party is financially eligible
• representation in proceedings for applicants under the 1980 European Convention on Child Custody or 1980 Hague Convention (and mediation in such matters)
• advice and representation in relation to transitional EU arrangements and international agreements concerning maintenance for children

The Legal Aid Agency (LAA) issues an updated  key card every year, which gives the key thresholds for legal aid eligibility. The 2026 limits are:

• gross income not to exceed £2,657 per month. Add £222 to the base gross income cap for the 5th and each subsequent child dependant) but deduct some fixed allowances/some relating to individual circumstances
• disposable income not to exceed £733 per month
• disposable capital not to exceed £8,000 (except for immigration where the limit is £3,000)

Capital

• Capital must always be assessed – even for people on welfare benefits – as the eligibility threshold for legal aid is lower than benefits for some claimants.
• The capital threshold does not apply in domestic abuse injunction and forced marriage cases; but contributions are not waived and may be substantial.
• A mortgage on the client’s home can be disregarded. Their home will be “subject matter of the dispute” (SMOD), so up to a further £100,000 can be disregarded. Property in joint names will be assessed on a 50:50 basis. If the client cannot gain access to capital (“trapped capital”), the LAA has the power to disregard it.

Clients on the following benefits are passported through the income test:

• Income Support
• Income-Based Job Seeker’s Allowance
• Income-Related Employment and Support Allowance
• Guarantee Credit
• Universal Credit

Whose means should be taken into account?

Normally the client’s and their partner/spouse’s means; but where the relationship has broken down, the former partner/spouse’s means are disregarded. The client can live in the same house as their ex as long as they live “separate and apart”.

Contributions and the statutory charge

If the client is financially eligible and the issue is in scope, they will not have to pay contributions for advice; but they may have to pay contributions for representation in proceedings.

The statutory charge will apply if money or property is recovered or preserved.

LAA services for assessing eligibility

Potential clients can use the LAA checker, which covers whether the issue is within scope of legal aid and financial eligibility: see the “Check if you can get legal aid” section of www.gov.uk/legal-aid/check-legal-aid.

Practitioners can use the “Check if your client qualifies for legal aid” tool, which enables practitioners with legal aid contracts to download a controlled work form with the answers included for the client to sign.

Legal aid providers with complex queries in relation to a client’s financial eligibility assessment can seek assistance from senior caseworkers at legalaidlearning.justice.gov.uk/queries-for-a-means-expert/. They aim to respond within 48 hours. Queries can cover:

• acceptable evidence/documents
• money which is not accessible
• vulnerable clients struggling to produce evidence of means
• trapped capital
• aggregation issues
• reassurance before using delegated functions on complex assessments

In summary, the eligibility rules for legal aid are complex, but as noted, it is important to bear in mind their potential application in order to best serve those who my need it.

Vicky Ling, Legal Aid Consultant to Resolution’s Legal Aid Committee

[email protected]