On 1 April 2013, the reforms from the Legal Aid, Sentencing and Punishment of Offenders Act 2012 ("LASPO") took effect and changed the scope of Legal Aid as we knew it.
Legal Aid remains available for the following:
- public law proceedings;
- injunctive relief including non-molestation orders, occupation orders, forced marriage protection orders and other protective orders and injunctions;
- representation and advice for children aged under 18 (as an applicant, respondent or where joined as a party to proceedings); and
- international abduction cases where there has been an unlawful removal of a child, securing an order to prevent the unlawful removal of a child from the UK or to secure the return of a child unlawfully removed from or within the UK.
Legal Aid is not available for the following:
- Private children applications (ie residence, contact) unless the client can demonstrate they have been a victim, or are at risk of domestic violence and they have the required evidence to support their claim; or where the child who would be the subject of the order has been or is at risk of abuse from another individual (who would be party to the proceedings) and the client again, must have the prescribed supporting evidence.
- Finance applications (including divorce) unless the client can demonstrate they have been a victim, or are at risk of domestic violence and they have the required evidence to support their claim.
The methods of application
The methods of application for public funding are the same as before in terms of completing the various forms and providing the same income evidence, with clients subject to the means and merits test (subject to any exemptions or waivers).
The changes mean that some areas are no longer covered by legal aid. These include children (contact and residence) and finance applications (including divorce) unless the client can demonstrate they have been a victim, or are at risk of domestic violence and they have the required evidence to support their claim.
In the case of applications relating to disputes about children, the client will need to demonstrate that the child who would be the subject of the order has been or is at risk of abuse from another individual (who would be party to the proceedings) and the client must have the prescribed supporting evidence.
The categories of supporting evidence for the above are set out in the Civil Legal Aid (Procedure) Regulations, namely Regulations 33 and 34.
The definition of "domestic violence" in LASPO has been amended to reflect the new cross-government definition and is contained in the Legal Aid, Sentencing and Punishment of Offenders Act 2012 (Amendment of Schedule 1) Order 2013. It is broader and reads:
"Domestic violence means any incident, or pattern of incidents, of controlling, coercive or threatening behaviour, violence or abuse (whether psychological, physical, sexual, financial or emotional) between individuals who are associated with each other"
If the client is relying on the domestic violence criteria, the required evidence must be provided before legal aid will be granted as it needs to be sent together with the application form. Legal aid will not be made available until the evidence is provided and will not be backdated. The same requirements apply to applications for Prohibited Steps Orders unless they relate to unlawful removal of a child.
Legal aid for mediation will continue to be available to cover the cost of a Mediation Information and Assessment Meeting (MIAM) where at least one party is eligible for legal aid. It will also cover the costs of mediation for any eligible client.
The CLSAPP7 will no longer be required; the expectation for clients to consider mediation being through the President's Pre Application Protocol, with mediators still completing Form FM1.
Legal advice in connection with mediation will continue to be available under a new service "Help with Family Mediation". This allows a family solicitor to claim £150.00 for each eligible client. This sum covers all advice in connection with the mediation regardless of the number of disputed issues. If an agreement is reached in mediation on finance issues, an additional £200.00 can be claimed to cover steps to obtain a consent order, including drafting and issuing proceedings.
A new CW5 "Help with Family Mediation" form will be introduced to provide evidence that a client has participated in mediation and could be entitled to receive legal advice from a family provider in respect of the mediation.
Means & Merits Testing
The Civil Legal Aid (Financial Resources and Payment for Services) Regulations 2013 set out the rules as to whether or not a client is financially eligible for legal aid under LASPO. They also set out when a client is required to pay a contribution in respect of the cost of the legal aid they receive.
From 1 April 2013, clients who are in receipt of the usual ‘passported' benefits will only be passported with regard to the income part of the means test. They will now be subject to means testing in respect of their capital. The same capital eligibility rules will apply to all applicants.
There are still some work areas exempt from means testing, such as certain public law children proceedings. There are also discretionary waivers available, for example, in respect of forced marriage protection orders.
To assist with assessing a client's eligibility the online calculator tool now takes into account applications made following 1 April 2013.
The Civil Legal Aid (Merits Criteria) Regulations 2013 make provision for the merits criteria which are applied when determining whether or not a client qualifies for legal aid. The criteria are divided into general and specific merits. When determining a client's eligibility for legal aid, the general merits criteria are applied (unless they are disapplied, modified or supplemented by the specific merits criteria). The general merits criteria have a number of tests which are set out in the Regulations.
Amy Sanders is a Family Law PSL at Jordan Publishing and was formerly a children and family solicitor practising in London and more recently in Devon.
She can be contacted on Twitter: @Amy_Sanders1