[soac-newgtldapsup-wg] Applicant funding eligibility criteria (and more)- UK Legal Aid Model
Dear JAS members, Below is a summary of the UK legal aid system eligibility criteria (with some supporting documentation) for you kind review and attention. We can discuss its appropriateness at the next call. Regards Cintra Sooknanan *Definition* Legal aid helps with the costs of legal advice for people who cannot afford it and may be regarded as a redistributive transfer of resources from taxpayers to those who are most needy of legal services. Legal aid does not involve providing direct financial transfers to clients but instead involves providing legal services which are funded or subsidised (to differing extents) by the legal aid budget. *Test* Whether an applicant receives legal aid will depend on: •the type of legal problem (the nature of the case); •‘financial eligibility’-- applicant's (or their partner's) income and capital (money, property and belongings); and • whether there is a reasonable chance of winning and whether it is worth the time and money needed to win (the merits of the case). One peculiarity of criminal cases is that an *interest of justice* test is also employed to determine: •the likelihood of loss of liberty and livelihood; •the damage to reputation; •if the case involves a substantial question of law; •if the applicant may not understand the legal proceedings; •if witnesses need to be traced/interviewed on the applicant's behalf (alot of procedural issues); •if the case involves expert cross examination; •if it is in the interest of another person (witness or defendant) for the applicant to be represented; and •any other reason. While these do not exactly suit our purpose, they may be tweaked to fit an *Interest of the Community* test. *Changes in financial circumstances* Another assessment may be done if the financial situation changes (earnings rise or fall, or obtain money from selling a capital asset). The amount to be paid towards the legal costs may then change. May stop legal aid if: • the applicant does not give information to the legal aid adviser that they need or request; • the applicant's financial circumstances change so that they are no longer financially eligible for funding; • the applicant does not keep up any monthly contribution agreed to pay as part of the legal aid; • the applicant withholds information about financial circumstances; or • it is discovered that the applicant is not eligible for legal aid. The applicant's legal aid can be stopped in two ways: • ‘Discharged’, which means funding will stop from the point when we send the applicant a notice. The applicant may have to repay some or all of the money already spent on the case. • ‘Revoked’ (cancelled), if we find you were wrongly granted legal aid, for example by giving false information about finances. In this case, the applicant may have to repay all the money spent on the case. *Partial payment and re-payment* If the applicant is granted legal aid, we will pay your solicitor or adviser directly – the applicant does not receive money to pay the legal bills. If the applicant does receive legal aid, you may still have to pay some of the costs, depending on the financial situation and your case. This ensures the fund is self sustaining and does not diminish quickly; there are three ways the applicant may have to pay: • ‘capital contribution’--a lump sum; • ‘income contribution’-- monthly instalments from income until the case finishes; and • ‘statutory charge’-- repaying costs if the applicant receives (or keeps hold of) money or property by winning the case. The charge has three main objectives: 1. It allows public money to be ‘recycled’ so that it can be used to fund other applicant’s legal cases in the future. 2. It helps to deter applicants from running up unnecessary legal costs. 3. It puts the applicant (whose case is being funded by legal aid) in the same position as a normal applicant (who is paying their solicitor privately). *Present Reforms* In order that we not suffer the same limitations of this system, it is also helpful to review the current *UK Legal Aid Reforms* (which will reconsider financial eligibility and how much an applicant might contribute to their legal aid, if anything). Some key areas are: (i) Abolish ‘capital passporting’ (‘passporting’ is a term used to describe the automatic eligibility for legal aid if a client is in receipt of particular income state benefits, even if the client possesses a certain level of capital); (ii) Introduce a capital contribution fee of £100 for clients with disposable capital of over £1000 (iii) Abolish ‘capital disregards’ (no longer disregarding capital held by the client when applying the means assessment) in cases where the capital assets do not form part of the dispute, but retain a waiver scheme for those who cannot access their equity and asset dispute disregards in cases where rights in the property are disputed; (iv) Increase income contributions for all legally aided clients who make contributory payments. (v) Supplementary Legal Aid Scheme - introduce a scheme in which a percentage of general damages are taken from successful cases. References: http://www.legalservices.gov.uk/public/help/information_leaflets.asp#leaflets http://www.justice.gov.uk/consultations/docs/legalaidiacumulative.pdf Attachment:
criminal_legal_aid.pdf |