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Family Law

The leading authority on all aspects of family law

07 AUG 2015

Civil news: civil legal aid merits regulations amended

Civil news: civil legal aid merits regulations amended
Assessment of 'borderline' and 'poor' prospects cases changes following judgment.
On 27 July 2015, an amendment to the civil legal aid merits regulations came into force. This follows the judgment of IS v The Director of Legal Aid Casework and the Lord Chancellor.

The amendment affects all civil legal aid cases assessed as having 'borderline' or 'poor' prospects of success, including exceptional funding cases. As a result, legal aid may now be provided for some of these cases.

When could legal aid be provided?

Legal aid may now be provided where the Director of Legal Casework is satisfied that it is necessary or appropriate to determine that the prospects of success criterion is met because this would prevent a breach of the applicant's rights under the ECHR or EU law.

More information is available in paragraph 2 of the regulations, which can be found here.

All other funding criteria stay the same, and cases assessed as having 'very poor' prospects (that is, less than 20%) will be refused legal aid.

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How will this impact the application process?

Please continue to make your applications to the Legal Aid Agency (LAA) using the relevant legal aid application form or CCMS. Please confirm that you:

  • have assessed the case's prospects as 'borderline' or 'poor'; and
  • consider that the prospects of success criterion should be met to prevent a breach of the applicant's rights.
If using CCMS, please send an email to the address below alerting us to the application and put the CCMS case reference number in the email header.

Additional information required

If you have not already done so, you will need to provide information relating to the prospects of success test, particularly:

  • the importance of the case to the client;
  • the complexity of the proceedings, area of law or evidence (specific information is required)
  • the court, tribunal or forum where the case will be heard
  • the client's ability to present their case effectively(considering education, relevant skills, experience and disabilities, and general capability); and
  • the need for effective access to justice or to avoid obvious unfairness
Please provide this in the relevant form as part of the statement of the case, or in a cover letter.

Useful links

Applications for 'poor' or 'borderline' determinations should be sent to:

HR&EUInscopeCases@legalaid.gsi.gov.uk for cases covered by legal aid
ECF@legalaid.gsi.gov.uk for exceptional funding cases

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