Potential new clients often contact Armstrong Family Law asking if they are eligible for legal aid. Unfortunately, they rarely are.
Legal aid was once readily available for parties who had limited means. It could cover many types of legal work, including family disputes, civil claims and criminal cases. A lesser form of legal aid (called Legal Advice and Assistance or “Green Form legal aid”) was available for initial legal advice and to cover undefended divorce proceedings. However, legal aid has declined enormously since then.
Very few people now qualify for family or civil legal aid. It was largely withdrawn from civil cases over 20 years ago, with the government expecting solicitors to instead undertake work on a no win no fee basis. In family cases, (where no win no fee arrangements are not allowed), legal aid was then cut back substantially by the Legal Aid, Sentencing and Punishment of Offenders Act 2012 (LASPO).
The changes introduced by LASPO meant that large numbers of people who had previously been eligible for legal aid now could not obtain it. Simply having a low income and no assets does not entitle people to legal aid anymore.
To qualify for family legal aid to pay for legal representation now, you have to be a victim of domestic violence or abuse. If you aren’t, then you will not get legal aid.
Legal aid is still available (for applicants) to meet the cost of an application for domestic violence injunctions (known as non-molestation orders and occupation orders). Depending on the applicant’s financial circumstances, this may be subject to a contribution from their income or capital towards their fees. Legal aid is not available for the respondent to an application, something which could be argued is unfair as it denies the respondent access to justice as well as giving the applicant an unfair advantage. (To be fair, even in the good old days of legal aid, respondents could not get it to oppose a non-molestation order, although they could get it to oppose an application for an occupation order if the effect of the order would be make them homeless).
Legal aid is also available to cover the cost of divorce financial applications and disputes about children, but again only where the party seeking legal aid is a victim of domestic violence and abuse. This is subject to a means test so that only domestic abuse victims with low income or minimal capital will qualify (again possibly subject to a contribution from their income or assets).
Legal aid is available to meet the cost of mediator’s fees (subject to financial eligibility), but not all mediators do not undertake this type of work. It only covers the mediator’s fees, and none of the fees incurred with a solicitor advising on matters discussed in mediation.
(Legal aid is still available on a non-means tested basis to deal with public law children cases, i.e. where the local authority is seeking a care order in relation to a child considered to be at risk. Armstrong Family Law does not undertake this type of work).
People who manage to overcome this hurdle and who are eligible for legal aid then face a further problem. They have to find a solicitor who still undertakes legal aid work.
One of the reasons why legal aid has declined is that with every passing year, more and more firms have abandoned legal aid work. It is extremely poorly paid; when I last undertook legal aid work almost 20 years ago, the hourly charging rate was about £65 per hour; that was barely a third of my privately paying hourly charging rate at the time. It has not increased since that time. Not surprisingly, law firms increasingly found that the work was becoming unprofitable. Law firms are not charities; they are businesses and have to turn a profit, or at the very least break even, on the work that they do. The firm that I was a partner in at the time made the decision to give up doing legal aid work, as our privately paying clients were effectively subsiding our legal aid clients.
The unrealistically low pay rates for legal aid, coupled with the additional bureaucracy and regulation that the work involved led most law firms to give it up. In Colchester, for example, I am aware of only one law firm that still undertakes legal aid in private (i.e. not public care) cases, and even that (I think) is only prepared to do legal aid work for existing clients. Such legal aid “deserts” are commonplace throughout the country.
Many of the people who enquire about whether they are eligible for legal aid find it difficult to understand why they did not qualify. More than once, I have informed a caller that they are not eligible (because they are not a victim of domestic abuse) and that in any event Armstrong Family Law does not undertake legal aid work, only to hear them say that they will call another law firm and see if they can get legal aid there. They struggle to believe what I am telling them. I have to tell them that they will get the same response at another law firm; granting legal aid is not something that can be done at the discretion of the law firm, it is granted by the Legal Aid Agency. Even law firms who have delegated powers enabling them to grant legal aid in emergencies have to follow the LAA’s rules about eligibility.
Those people who are eligible and are able to find a legal aid solicitor to act for them will probably find that they don’t receive a Rolls Royce service. The legal aid lawyers will do what they need to do, but in my experience, they won’t do more than that. The dreadfully low pay rates mean that legal aid lawyers will not be inclined to go the extra mile for their clients. This can cause enormous frustration in cases where clients find that their ex has legal aid; getting them to do anything out for the ordinary is very, very difficult and delays are commonplace while the legally aided party seeks an extension to their legal aid certificate to cover some additional work. If you do find yourself against a legally aided party and need an expert report on your case, it is possible that instead of expecting the parties to equally meet the cost of the report, the court might accept the legally aided party’s argument that the privately paying party should meet the whole cost, simply because the LAA won’t pay for it.
Regrettably, it is not unusually to encounters cases now where one party may have falsely alleged that they are a victim of domestic violence or abuse just so that they can get a legal aid certificate. Evidence is needed by the LAA before it will grant legal aid, such as medical evidence or a police report, but this is nothing as definitive as evidence that the other side has actually been convicted of abuse. Furthermore, as the eligibility rules limit legal aid to domestic abuse victims, the vast majority of whom are women, this inevitably discriminates against men.
The LASPO changes were of course designed to save money. Lawyers had been under fire from successive governments about legal aid for years. It’s not just from Conservatives; in the late 1990’s, lawyers were (disgracefully in my view) accused by the Labour government of being legal aid fat cats. For those who regard access to justice as being as important as access to free healthcare, it was galling to be regarded as such by politicians who were content to pay doctors and surgeons handsomely for NHS work. It also overlooked the fact that in family cases, the legal aid was often repayable by the legally aided party out of any capital settlement that he or she received in the divorce. The poisonous atmosphere against legal aid lawyers continues to this day; tabloid newspapers regularly contain headlines screaming that someone undeserving (such as a defendant in a criminal trial) has been given thousands and thousands of pounds in legal aid, as if the government handed them a ton of cash in a suitcase, rather than it being paid to the lawyers, and having been calculated and paid according to the LAA’s rules.
The withdrawal of legal aid by the government was immensely short sighted. The Coalition government failed to recognise that solicitors were important gatekeepers. When clients were able to get free initial legal advice under the Green Form scheme, they would often be advised to try and negotiate an agreement or to use mediation instead of rushing to court. Limited legal aid (known as Help with Mediation) covered the cost of legal advice throughout the mediation process and made it more likely that mediation would be successful. Removing people’s entitlement to this meant that more people began court applications which should instead have been mediated or negotiated. The parties in these applications often represent themselves, which means that cases take longer as well inevitably leading to amateurish blundering. The lack of lawyers means that no-one was trying to negotiate an agreement to avoid further hearings.
As a result, the Family Court is now log jammed. Applications take forever. Hearings are cancelled at incredibly short notice. People are denied justice. It costs the government more and it costs society more. Many children spend no time with their parents because that parent cannot get legal aid and cannot face making an application to the court in which they have to represent themselves.
Legal aid should never be regarded as a blank cheque. It has never been granted on a whim; there is a merits test designed to weed out unjustifiable cases and solicitors are under a duty to report legally aided clients to the LAA if they are insisting upon their cased being pursued unreasonably, so that their legal aid can be withdrawn.
I am afraid that I have long concluded that the legal profession has lost the battle for legal aid. There is little popular support for legal aid, which has means that it has been an easy target for successive governments to cut and to refuse to fund properly. The government occasionally pays lip service to publicly funding legal disputes; for example, there is a mediation voucher scheme which provides up to £500 of funding for people mediating in cases where there are disputes about children. However welcome that is, it is not proper legal aid.
Many family solicitors claim to specialise in acting for high net worth clients, the sort of clients who would never qualify for legal aid. However, in reality there are only so many of those out of there and high street law firms also have to act for large number of far less affluent clients. The high cost of instructing a solicitor has led to the introduction of alternatives to the old-fashioned business model based around hourly rates. Many solicitors will now undertake work on a fixed fee basis or will do work on a Pay As You Go basis, where they do limited pieces of work for the client, such as advice sessions or drafting of documents, but have no other involvement in the case. Barristers now sometimes offer direct access arrangements where a party can instruct the barrister direct to represent them at a hearing, instead of instructing them through a solicitor.
This is therefore the future for family work. Legal aid is increasingly a thing of the past.
28 January 2023
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