Legal aid: No gateway evidence?

When we think of legal aid, we generally think of legal aid for care proceedings or other public law proceedings and also private law proceedings. This article aims to look at where funding is still available where your client does not have “gateway evidence”. In this article, we explore a few options that might not immediately come to mind – there are many others.

Respondents to non-molestation and occupation order applications

Legal aid is available for respondents in applications for non-molestation orders, but is means- and merits-tested. The main circumstances when the Legal Aid Agency (LAA) may say a respondent has merits in opposing an application is when there are linked Children Act or criminal proceeding and where a finding might impact on those proceedings. This is especially useful when there are linked Family Law Act and Children Act proceedings and the fact finding is being held in both proceedings.

If there are no linked proceedings it’s difficult for a respondent to a non-molestation order to persuade the LAA that there are merits in defending what is essentially an academic argument – particularly if the client can give undertakings or having an order against them has no real impact on their private life.

Legal aid for respondents on applications for occupation orders, however, is easier to obtain. In the same way that housing legal aid is available for possession proceedings, if a person stands to lose their home, this probably would amount to sufficient merit to have legal aid.

Although a qualified legal representative (QLR) would be appointed to cross-examine the applicant, there is a definite benefit to the respondent client in being represented fully so their statements and evidence are properly prepared and arguments can be made on the scope of the fact finding etc.

In order to satisfy the merits test, you will need to set out the background and explain clearly what’s at stake and why your client should get legal aid, subject to means.

Emergency legal aid – using delegated functions (formerly known as devolved powers)

Using delegated functions – ie granting legal aid yourself – is, in means-tested applications, a risk that many solicitors don’t want to take when there is an emergency, but we would suggest that firms use their delegated functions when they can.

If there is an emergency application that needs to be made, such as an emergency Children Act prohibited steps order, or representing someone who is a respondent on a return date of an application, then provided you are confident that your client is entitled to legal aid financially and that they have merits in their application then you can safely grant legal aid and the LAA shouldn’t go behind your decision.

The LAA has an online checker to see if your client would be eligible for legal aid https://check-your-client-qualifies-for-legal-aid.service.gov.uk/. Our advice would be to make sure you obtain the financial evidence (three months bank statements of all accounts, proof of income, rent, benefits etc) and have a file note of the calculation you have carried out to check they are eligible. Now that bank statements are generally easily obtained on banking apps online, this should be achievable quickly.

These are the matters practitioners have to be satisfied with in granting emergency legal aid:

• ensure the work is within the scope of civil legal aid
• confirm you are authorised to use delegated functions for the relevant category and proceedings
• satisfy yourself that the client meets the means and merits criteria
• rely on appropriate and prescribed evidence
• stay within the applicable time and cost limits

Remember that you must submit your legal aid application within five working days if you have used delegated functions. Also remember that there is a £2,250 default costs limitation and an eight-week time limit for an emergency certificate. If the case is High Court Inherent Jurisdiction, that costs limit can be eaten up very quickly with one hearing, so if you intend using your delegated functions you need a greater financial limit, so make sure that you alter the default on your emergency grant provided you can justify it.

Although you don’t have to apply for the substantive certificate at the same time as the emergency certificate, it’s useful to apply for both at the same time or you have a double struggle with the portal! This is called the single stage process.

You need to make sure that your client knows that if it transpires that they are not eligible for legal aid financially, then they may become liable for the fees – but then the fees they pay on a revoked legal aid certificate are probably going to be far lower than private fees, so most clients will take that risk.

To undertake the calculations as to whether someone is eligible for legal aid financially, there is an online calculator, but it may be preferable to have a note of how you’ve worked it out with good old pen and paper on file using the Legal Aid Keycard (updated each April).

Committal proceedings

When there are contempt proceedings (eg for breach of an undertaking given in family proceedings) or enforcement when a D50K application is made where one option includes committal to prison, legal aid is automatically available on a non-means test basis for the respondent to the application to be represented. There must be a real risk of custody but where that’s an option for the court, the criteria of a risk of custody will be met.

The issue is that the legal aid is criminal legal aid.

Even if your firm does not have a crime contract and only has a family legal aid contract, you can apply for an individual criminal contract for the client to be represented. Experience would suggest that the LAA are amenable to such contracts being granted, particularly if the client is an existing client, but even if they are a new client, if you show that the issue raises complex family law issues (which any committal case generally does) then a legal aid contract will be granted.

The application is made by completing form CRM14 (you don’t need to complete the means section) and submit it to the National Crime Team on [email protected]. In your covering email, you need to justify why your firm should be given the individual criminal contract as detailed above.

Be careful with criminal legal aid – the financial limitations are strict and for each adjourned hearing you need to extend the financial limit beforehand. Word of warning: like many aspects of private law family legal aid, it’s difficult to find counsel because the rates are so poor. In crime, they’re even worse and so it is tricky to obtain representation. You need to make sure that counsel’s clerk knows that the legal aid is criminal legal aid.

If you don’t feel able to take this on under a separate case contract, you can and should refer the case to a criminal lawyer who offers legal aid.

Exceptional funding

We often think that the end of the line comes in Children Act cases when there is no gateway evidence (the evidence needed for that is an article in itself). But where your client does not have gateway evidence, you can nevertheless apply for exceptional funding to the LAA for such cases. This legal aid is means tested but has a different merits test.

Examples that are given by the LAA are:

• how your human rights would be affected by not getting legal aid
• that you’re not able to deal with the case yourself, for example because you find it difficult to read or write, the case or evidence is complicated or the case is difficult to prove
• that the outcome is extremely important

Any family case will generally involve human rights, ie Article 8 right to family life. In particular, if a client is particularly vulnerable by reason of a disability or if they are neurodivergent, this may well justify exceptional funding. If they have a complex case and cannot represent themselves for good reasons, it is worth trying to obtain exceptional funding. Linked criminal proceedings might be a reason why family funding is needed as the findings in the Children Act case may be used in the criminal case.

The guidance is set out here together with the forms to be completed: https://www.gov.uk/government/publications/legal-aid-exceptional-case-funding-form-and-guidance

You will need to bear in mind that your costs if your application is not successful will not be claimable from the LAA although you can charge privately. If you are successful, subject to certain time limits regarding the date of application, you can be paid by the LAA for your work undertaken on making the application (although you must reimburse any private fees to your client).

High Court proceedings/wardship

Legal aid is available for these proceedings and given the complexities of any High Court proceedings it’s likely that, provided the client is financially eligible (see Keycard details above), there will be merits in them being represented. Gateway evidence is not required for these certificates.

Mediation

Don’t forget that legal aid is available for mediation. We featured this in the article we wrote in the September/October 2025 edition.

Finally… we hope this article has assisted by setting out when less usual routes of legal aid are available which may assist your clients or enable you to think about referring your client to a firm providing legal aid

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