If you are in a situation that requires legal support, then you are likely to be entering a period of stress and anxiety. Worrying about how you are going to pay for that legal support is only going to add to your stress and anxiety.
In the UK, the Legal Aid system was introduced to help people who are unable to afford legal representation and access to the court system. It was introduced as a key policy in ensuring equality before the law, the right to counsel, and the right to a fair trial for all.
However, the criteria for Legal Aid eligibility are strict, and not everyone can benefit from it. There is a strong chance that you may be refused Legal Aid.
To support you, we have put together a guide to explain what the key criteria are, the reasons Legal Aid may have been refused, and what you can do if you have been refused Legal Aid. We have included two example case studies illustrating where women have not be eligible for Legal Aid.
What Do You Need to Qualify for Legal Aid?
Each application for Legal Aid is considered on a case-by-case basis and takes into account the type of case you are involved in and your personal financial circumstances.
In civil and criminal cases, your application will be passed through controls that consider the scope, merits, and means of your circumstances.
The ‘scope’ refers to whether the case is one for which Legal Aid is available. The scope of cases where Legal Aid is available is very restrictive, particularly since the Legal Aid, Sentencing and Punishment of Offenders Act 2012 was brought in.
The ‘merits’ refers to the likelihood of the success of your case.
The ‘means’ test will require you to complete a financial eligibility check to assess your current situation and whether you meet thresholds. If your disposable income is over a certain amount you will not be entitled to any form of Legal Aid. If your income is lower than the amount, you may be required to make some contributions, depending on your level of disposable income.
Why Have I Been Refused Legal Aid?
If your application for Legal Aid has been refused, it will be because one or more of the above criteria have not been satisfied.
For example, it may be that the scope of your case – that the reason for you needing legal representation – is not covered by Legal Aid. Since 2012, the allocation of Legal Aid has been severely cut. The Legal Aid, Sentencing and Punishment of Offenders Act 2012 removed funding from certain areas of civil law, including private and family law (including divorce) and personal injury. Other areas, such as debt, housing, benefits, and immigration issues only qualify if strict criteria are met. You have to meet very strict criteria to qualify for Legal Aid in most cases.
It may be that the LAA – Legal Aid Agency – does not consider that your case is strong enough and that the cost of pursuing the case is out of proportion to the potential benefits.
Otherwise, it may be that your personal financial situation simply does not meet the eligibility thresholds.
What Can I Do if I Have Been Refused Legal Aid?
If you have been refused Legal Aid, then you are faced with a number of challenging issues that need to be carefully considered if you are to continue pursuing your case.
Represent Yourself
If you still wish to pursue a case through the Courts you may choose to represent yourself. It is possible that your case involves the breakup of a marriage and maintaining the family home to preserve a stable environment for your children. It may be that mediation hasn’t worked or was not appropriate and it may also be the case that you have been subjected to domestic abuse within your former relationship. These factors can all make representing yourself a very daunting and challenging prospect.
In the event that you do decide to represent yourself please note that the Court can, in some circumstances, consider making a Costs Order against you, which would mean that you could be liable for all associated costs including those incurred by the other party.
Representing yourself can be extremely stressful and challenging. You may lack the skills, support and knowledge to follow the procedures and formalities properly and to represent yourself effectively, which can place you at a significant disadvantage.
Contact Affordable Justice
Affordable Justice is a law firm which was specifically set up to offer advice and representation to women who are not eligible for Legal Aid. We are non-profit making and therefore our charges are significantly lower than other law firms (usually approximately a third of that charged by profit-making law firms). Affordable Justice specialises in helping women, including those who have been subjected to domestic abuse, in a range of family law cases.
Affordable Justice is a law firm run by women for women, providing accessible legal support and services on a wide range of issues, including domestic abuse, divorce, family matters, and childcare disputes. If you are unable to access Legal Aid but still believe you have a case that you would like to pursue, do contact us for an initial conversation. We are here to help you.
Examples of Ineligibility to Legal Aid
Case 1
Michelle has been in a relationship for over 10 years and got married four years ago. The couple have three children together, aged six, seven and nine.
Throughout her relationship with her husband, Michelle has been subjected to serious domestic abuse by him. This has included financial abuse (controlling her money), emotional abuse, and physical violence. Michelle has contacted the police many times. Her husband has been arrested repeatedly and has received several cautions.
On two occasions, criminal court proceedings have resulted in Michelle’s husband being charged with domestic abuse. On both occasions, Michelle had serious facial injuries that needed hospital treatment. On these occasions, her husband pleaded guilty to assaulting her, which means he now has convictions relating to violence towards her.
Two days ago, Michelle’s husband came home under the influence of alcohol. He was verbally abusive towards Michelle and made threats to kill her and the children and burn down the family home. He also smashed the kitchen window, dragged her around by her hair and hit her. Michelle had a black eye and a cut and swollen lip as a result of this incident. The incident occurred in front of all three children.
Michelle was terrified and believed that her life and the lives of her children were in danger. She managed to flee the family home with the children, taking with her absolutely no belongings other than the clothes they were wearing at the time.
Because of Michelle’s circumstances, she should be entitled to legal aid so that an application can be made on her behalf for a non-molestation Order to give her and the children some personal protection. She could also potentially apply for an occupation Order, which means they could return to live in the family home without Michelle’s husband being able to access the property.
However, to satisfy the legal aid agency that she qualifies financially, Michelle has to provide them with various original documents, including four months of bank statements, proof of her benefit entitlement and proof of her rent or mortgage. All these documents must be completely up to date for Michelle to be able to get public funding.
Michelle has a Post Office account. She contacted the Post Office, but unfortunately, they say it will take around 10 days for the documents to be sent to her. Michelle, therefore, does not have the documents to satisfy the legal aid agency and doesn’t qualify for public funding.
Case 2
Gemma has a three-week-old baby whom she breastfeeds every few hours. Unfortunately, she separated from the baby’s father whilst she was pregnant because they grew apart. They remained on civil terms.
Once the baby was born, her former partner came to her home to meet the baby. He promised her that he would be there for her, accepted his parental responsibility for the baby, and wanted to play an active role in the baby’s life. He asked if he could go with Gemma to register the baby’s birth, and once there, he persuaded her to put his name on the birth certificate. By doing this, the baby’s father obtained legal parental responsibility for the baby.
Yesterday, Gemma agreed that her former partner could take the baby out for two hours. However, he did not return the baby as agreed. After waiting for a further frantic two hours and attempting to contact him unsuccessfully several times, Gemma phoned the police. The police did a welfare check and confirmed that the baby was fine and was being fed formula milk appropriate for his age. They said that, as both parents have parental responsibility, they were equal parents, and that as the baby was well, they did not want to intervene. They left the baby in his father’s care.
Gemma wants to make an urgent application to the family court for a specific issue Order for the baby to be returned to her care and also for a prohibited steps Order to prevent her former partner from removing the child from her care without her consent in the future. However, Gemma is not entitled to public funding. It is no longer available for private children’s law proceedings unless there is evidence of domestic abuse or that the child is at risk. Gemma does not have the evidence and does not, therefore, qualify for public funding.
Case 3
Kate has been in a relationship for four years. The couple have two children together, aged two and three years.
During the last six months, Kate’s partner has been abusing drugs and alcohol, and, as a result of this, their relationship has broken down. They separated two months ago. Five months ago, Kate was physically assaulted by her former partner. She and the children were locked in the family home for several hours, and Kate was very frightened. After the incident, her partner told her he was sorry and said that he could not live without her and the children. He promised to stop drinking and begged her not to tell anyone and to stay with him.
Four months ago, there was a further incident when Kate was hit across the face by her partner in the presence of the children. She told her partner she wanted to separate from him, but again he begged her to stay with him. He also told her that if she left him, he would kill her and the children.
On the day that they separated, Kate waited until her partner was out and then moved out with the children. They moved in with relatives but have now got their own privately rented property.
Immediately following their separation, Kate agreed to some contact between her former partner and the children. He has been spending time with the children each weekend.
Today, Kate has been served with some court papers relating to an application by her former partner for a child arrangement Order for both of the children to reside in his full-time care.
He has alleged that the children are being neglected whilst in Kate’s care and that he has noticed his youngest child has bruising. The matter is listed for an initial hearing at the family court in six weeks’ time. Kate does not qualify for public funding as she has never reported any of the incidents to the police, has never disclosed anything to her GP and has never been to a refuge. She doesn’t have the necessary evidence of domestic abuse and, therefore, can’t access public funding.
In instances of domestic abuse, parental responsibility, child arrangement Orders, family court, prohibited steps Orders, occupation Orders, non-molestation Orders, and specific issue Orders, among many other situations that require legal help and support, Affordable Justice can provide that support. Please contact us, and we will advise you. There is no cost for having a chat about your issue.