NORTHERN IRELAND LEGAL SERVICES COMMISSION. A Guide to Legal Aid

Transcription

1 NORTHERN IRELAND LEGAL SERVICES COMMISSION A Guide to Legal Aid

2 INTRODUCTION BY THE CHAIRMAN I am pleased to introduce the Northern Ireland Legal Service Commission s (the Commission) Guide to Legal Aid. The Guide has been devised to help our customers understand the complexities of the current Legal Aid Schemes so that they know how to apply for, and get, the help which they may be financially entitled to receive. In the Business Plan 2012/13, which is available in the Corporate Governance section of the Commission s the Commission signalled its intention to work with the Minister of Justice and his officials to deliver the programme of reforms which the Minister will bring forward to reshape how access to justice is delivered and funded. To ensure customers are aware of the new arrangements, the Commission will update the Guide as changes to the Schemes and financial eligibility limits and allowances occur. This will form part of the Commission s communication strategy to support and promote the Minister s programme of reforms. The Guide focuses primarily on the Civil Legal Aid Schemes as the Commission is responsible for granting Legal Aid under these Schemes. Part 6 provides a short overview of Criminal Legal Aid as the Commission is not responsible for granting Legal Aid in criminal cases. The Commission has ensured that the Guide highlights the responsibilities of applicants for Legal Aid to submit accurate information about their finances and/or their case and also to notify the Commission of any changes to their financial circumstances or the circumstances of their case. The Guide gives general guidance only and should not be treated as a complete and authoritative statement of the law. The financial information given in the Guide is correct at the time of publishing, but the financial eligibility limits and allowances may change. The Commission would welcome any suggestions to improve or extend the information included in the Guide. Suggestions should be addressed to the Secretary to the Board at the address given in Part 7 of the Guide. I hope you find the Guide a useful source of information and that it provides you with a better understanding of Legal Aid. R B Spence Chairman V2 January

3 CONTENTS Part 1 Part 2 Guide to Legal Aid in Northern Ireland- Introduction 1.1 The Legal Aid Schemes 1.2 The five types of Legal Aid 1.3 Where do you find a solicitor? 1.4 Points to keep in mind 1.5 Administration of Legal Aid Legal Advice and Assistance 2.1 What does Legal Advice and Assistance Cover? 2.2 How to get Legal Advice and Assistance 2.3 Do I qualify financially? 2.4 Savings: do I qualify? 2.5 Income: do I qualify? 2.6 Do I pay a contribution? 2.7 Children 2.8 Advice for people unable to attend personally 2.9 What happens if money or property is recovered or preserved? 2.10 Repeat applications for the same matter 2.11 The Order and Regulations Pages Part 3 Assistance By Way of Representation 3.1 What does Assistance By Way of Representation cover? 3.2 How do I apply for Assistance By Way of Representation? 3.3 Financial Eligibility 3.4 Assessment of financial eligibility 3.5 Do I qualify financially? 3.6 Savings - do I qualify? 3.7 Income - do I qualify? 3.8 Do I pay a contribution? 3.9 What happens if money or property is recovered or preserved? 3.10 Repeated applications for the same matter 3.11 The Order and Regulations Part 4 Legal Aid for Civil Court proceedings 4.1 What is Civil Legal Aid? V2 January

4 4.2 What kinds of Courts and cases are covered? 4.3 How do I apply for Legal Aid? 4.4 What happens if my case is urgent? 4.5 How do I qualify for Civil Legal Aid? 4.6 Who decides if I qualify financially? 4.7 Do I qualify financially? 4.8 Income - do I qualify? 4.9 Allowances for Dependants 4.10 Income - do I have to pay a contribution? 4.11 Calculating the contribution 4.12 How the contribution is paid 4.13 Changes in your financial circumstances 4.14 Savings - do I qualify? 4.15 Disposable capital/savings 4.16 Savings - do I have to pay a contribution? 4.17 Pensioners 4.18 Contribution covering a second Certificate 4.19 What if I win my case? 4.20 What happens if you are awarded money by the Court or recover property as a result of the proceedings? 4.21 What if my costs are paid? 4.22 What happens if I lose my case? 4.23 The Order and Regulations Part 5 Part 6 Special Exceptional Grant Scheme 5.1 What is the Special Exceptional Grant Scheme? 5.2 Do I qualify for funding under this Scheme? Legal Aid in Criminal Court Proceedings 6.1 What Legal Aid covers 6.2 How to obtain Legal Aid 6.3 Financial Limits 6.4 Contributions 6.5 The Order and Regulations Part 7 Annex A Northern Ireland Legal Services Commission contact details Legal Aid in other jurisdictions 30 V2 January

5 PART 1 Introduction: Guide to Legal Aid in Northern Ireland 1.1 The Legal Aid Schemes The Legal Aid schemes in Northern Ireland can assist you to obtain the help of a solicitor. Legal Aid ensures that persons of small or moderate mean have access to the same legal services as persons who can afford to pay a solicitor privately. A solicitor will complete Legal Aid forms on your behalf. There are differences between the Legal Aid Schemes. Guidance in respect of each of the Schemes is available in the Part of the booklet detailed below. 1.2 There are five Types of Legal Aid: Part 2 Legal Advice and Assistance, (also known as the Green Form Scheme) includes general advice, the drafting of documents including Wills, and negotiation on your behalf. Part 3 Assistance by Way of Representation mainly covers representation in some matrimonial and family proceedings in the Magistrate s Court. Part 4 Part 5 Part 6 Legal Aid for Civil court proceedings. Statutory Exceptional Grant Scheme. Legal Aid for Criminal court proceedings. This Guide explains in detail how the schemes work. It shows what conditions and financial limits apply. Depending on your financial circumstances, you may be required to pay a contribution towards the cost of your case. This guide explains how contributions are calculated and what contributions (if any) you may have to pay. 1.3 Where do you find a Solicitor To get Legal Aid you must see a solicitor. If you do not already have a solicitor, here are some ways of finding one: The names, addresses and contact details of firms of solicitors who undertake Legal Aid work are available in the Solicitors section of the Commission s website at Use the Solicitor Directory available from the Law Society website at Ask your local Citizens' Advice Bureau, Law Centre or Advice Centre V2 January

6 Ask at any solicitor's office and check if the firm does Legal Aid work. 1.4 Points to Keep in Mind It is best to make an appointment with the solicitor of your choice. Be Prepared. To ensure that you can give accurate information, bring all relevant information in relation to your income, capital and any documents relevant to your case with you when you go to see your solicitor. Examples of relevant information are: Home Postcode National Insurance Number Savings Book(s) A letter from the Social Security Agency setting out your benefit position Name and address of your employer Form P60 or Wages Slips with you. Any documents that help to support your case. There are criminal penalties for deliberate false statements about savings and income and you may have your Legal Aid withdrawn if you give the solicitor wrong information about your case. Keep in touch with your solicitor about your case and be guided by the advice you receive. You must tell your solicitor if your income or savings change as this may affect your eligibility for Legal Aid or if you change your address. 1.5 Administration of Legal Aid The administration of Legal Advice and Assistance and of Legal Aid for both civil and criminal proceedings is the responsibility of the Northern Ireland Legal Services Commission ( the Commission ) which was established in 2003 under the Access to Justice (NI) Order The Commission is empowered to grant or refuse Civil Legal Aid. There is a right of appeal against decisions taken by the Commission. Appeals are heard by the Appeals Panel which is an independent panel of solicitors and barristers. There is no right of appeal against a decision taken by the Appeals Panel. Your solicitor can advise you about any legal remedies which may be available to you. The financial assessment for Civil Legal Aid is undertaken by the Legal Aid Assessment Office which is part of the Social Security Agency. See Part 4. There is no right of appeal if the Legal Aid Assessment Office assess your means and determine that you are not financially eligible for Legal Aid. The Commission is responsible for the collection of contributions from assisted persons and the payment of all solicitor s and barrister s fees. It is not a government department. It does not offer legal advice. It is responsible for the administration of the Legal Aid Fund, which consists of V2 January

7 money and property recovered or preserved by legal actions financed by Legal Aid. The Legal Aid Fund is supplemented by direct Government Grant to cover administration costs and any shortfall in the Fund. Legal Aid in criminal cases is granted by the Court. The Commission is responsible for the payment of legal fees for cases in which Criminal Legal Aid has been granted. See Part 6. This document is available in a range of formats on request. Please contact us with your requirements (see page 30 for contact details). V2 January

8 PART 2 Legal Advice and Assistance 2.1 What Does Legal Advice & Assistance Cover? Help from a solicitor, including giving general advice, writing letters, negotiating, and preparing a written case if you have to go before a tribunal. This help can cover most legal problems such as divorce or maintenance, and the making of a Will. It enables people of small or moderate means to get help from a solicitor free of charge or for a contribution, until the solicitor's charges reach the equivalent of two hours work. The solicitor cannot exceed this limit without permission from the Commission. This limit does not apply in certain types of cases covered by a general authority, and to advice at Police Stations and holding centres. The limit which applies will depend on the nature of the matter on which you sought advice. Your solicitor will be aware of the relevant limit which applies when providing you with advice and assistance. The cost of an appearance by a solicitor before a tribunal is not covered by Legal Advice and Assistance. However, a solicitor can prepare a written case for submission to any tribunal and advise clients on how to present their case when appearing before the tribunal. The solicitor cannot take any actual step in court proceedings under the Legal Advice and Assistance Scheme unless specifically requested by the court to do so. However, the solicitor can prepare an application for Legal Aid in either civil or criminal proceedings. Legal Advice and Assistance is available in Northern Ireland for a point of Northern Ireland law only - it does not cover advice on the law as it applies to Scotland, England, Wales, Ireland or elsewhere. 2.2 How to Get Legal Advice & Assistance Paragraph 1.3 of the Introduction to this Guide suggests some ways of finding a solicitor. 2.3 Do I qualify financially? Your solicitor is responsible for determining your financial eligibility for assistance under the Legal Advice and Assistance Scheme. Your solicitor will base the assessment on your income and capital for the 7 days up to and including the date upon which you signed the Legal Advice and Assistance form. The Commission conducts random checks on the information provided by applicants under all these schemes. Therefore it is important that the V2 January

9 information you give to your solicitor is accurate. You should let your solicitor know of any change in your financial or personal circumstances. You must be able to show that your savings AND your income are within the current financial limits. If you have a partner (a partner being someone with whom you normally reside as a couple including a person of the same sex), your partners savings and income will be included unless: 2.4 Savings: do I qualify? You live separately and apart. There is a conflict of interest between you in relation to the matter (if. for instance, you want advice about a divorce). It would not be fair or practical to do so. Add up your savings. This includes the value of your savings, whether in cash, investments, money in a bank or the National Savings Bank and anything you own of substantial value, such as antiques, artwork and jewellery whether located in Northern Ireland or elsewhere. Do not include: The value of the house you live in. Your household furniture and effects, clothing and any tools of your trade The value of what us in dispute and you are seeking advice about. You should deduct allowances from your savings for any dependants. Dependants, for this purpose, are your husband or wife (but only where their capital income are added to yours), persons cohabiting, civil partners, dependant children and relatives wholly or substantially maintained by you. Allow: 1,000 if you have no dependants 1,335 if you have one dependant 1,535 if you have two dependants 1,635 if you have three dependants 100 for each extra dependant. What is left after making all these deductions is your disposable capital. If this exceeds 1,000 you will not be eligible. 2.5 Income: do I qualify? If you are receiving a passport benefit which are Income Support, Income based Job Seekers Allowance, Guaranteed State Pension Credit or Income Related Employment and Support Allowance, you will be eligible for free Legal Advice and Assistance unless your disposable capital exceeds 1,000. V2 January

10 If you are not receiving Income Support, Income Based Job Seekers Allowance, Guaranteed State Pension Credit or Income Related Employment and Support Allowance, your solicitor will take your actual income plus your partner's income in the past seven days and deduct from it: (i) (ii) Income Tax and National Insurance contributions against your partner whether or not there is a conflict of interest (see 2.3). Where you are separated or divorced, deduct the actual maintenance paid by you in the past seven days (iii) in the case of each dependant child or dependant relative aged under 20 There are built-in allowances for rent, rates and other expenses. What is left after making these deductions is your disposable income. You qualify for Legal Advice and Assistance if your disposable income is per week or less and your disposable capital is 1,000 or less. Payment of Disability Living Allowance must be declared in the assessment but is disregarded from the disposable income calculation Contributions 2.6 Do I pay a contribution? You will not be asked to pay any contribution out of your savings; neither will you pay anything if your disposable income is less than 107 per week. However, if it is between 107 and 234 your contribution will be as follows: Disposable Income not Exceeding Green Form Contribution Table from April 2012 Weekly Disposable Income Maximum Contribution Disposable Income not Exceeding 100 per week NIL 170 per week per week per week per week per week per week per week per week per week per week per week per week per week per week per week per week per week per week per week 134 Maximum Contribution Your solicitor will usually ask you to pay the contribution before any work is V2 January

11 done, but if this is inconvenient the solicitor may accept payment by instalments. You should ask the solicitor whether he/she will agree to this before the interview starts. In any case, the maximum contribution you should be asked to pay will be 134. You cannot be asked to pay more than your maximum contribution. For instance, if your maximum contribution is calculated as 28 and the solicitor's bill is 70, the balance will be paid by the Legal Aid Fund (unless money or property has been recovered or preserved on your behalf - see 2.9). 2.7 Children Where Legal Advice and Assistance is sought by someone under school leaving age, (at present sixteen years), the child s parent or quardian or other responsible adult must consult the solicitor on the Child s behalf. The means of whoever maintains the child will usually be taken into account in determining eligibility for this form of Legal Aid and in calculating what contribution (if any) is payable. (The position for Civil Legal Aid is different). 2.8 Advice for People Unable to Attend Personally If the person seeking help is unable to see the solicitor personally and the solicitor cannot visit him/her, then someone else may consult the solicitor on that person's behalf. In certain circumstances, a solicitor will be able to claim for attending the client, e.g. a person in hospital or with a disability. 2.9 WHAT HAPPENS IF MONEY OR PROPERTY IS RECOVERED OR PRESERVED? Where money or property is recovered or preserved under Legal Advice and Assistance your solicitor must use this to pay his/her bill if the bill is more than your contribution, should any contribution be payable. For example, if your solicitor recovers 400 for you and his/her bill is 50, you will (assuming you have not paid a contribution) receive 350. THERE ARE EXCEPTIONS TO THIS RULE. The charge will not apply where it can be shown it would cause Grave Hardship or distress, or if it could be enforced only with unreasonable difficulty because of the nature of the property. EXAMPLE 1 You are a pensioner who is being charged too much rent. Your solicitor recovers 80 rent that you have overpaid. It would cause you hardship to put the 80 towards his bill. He would apply for permission to have the 80 paid straight to you. V2 January

12 EXAMPLE 2 You are in dispute over the ownership of a pet dog, and your solicitor recovers it. It would be unreasonable for you to be asked to sell the dog and put the money towards the bill. So the bill, less your contribution, is paid by the Legal Aid Fund. The Statutory charge does NOT apply if the money or property recovered consists of maintenance payments; payments up to 2,500 in a matrimonial property settlement; payments under affiliation orders; various benefits (such as sickness, unemployment benefits, pensions); your house or furniture or half of any redundancy payments. Your solicitor will be able to advise you if the statutory charge will apply to any money or property recovered or preserved on your behalf Repeat Applications for the same matter You must tell your solicitor if you have had Legal Advice and Assistance from another solicitor about the same matter. The new solicitor must get authority from the Commission before he/she can give more advice and assistance. The solicitor can refuse to give Legal Advice and Assistance, and need not explain why. However, he/she may be required to inform the Commission of his reasons for such refusal The Order and Regulations The law relating to the form of Legal Aid dealt with in Part 2 of this booklet are set out in the Legal Aid, Advice and Assistance (Northern Ireland) Order 1981 and the Legal Advice and Assistance Regulations (Northern Ireland) 1981, as amended. V2 January

13 PART 3 Assistance By Way of Representation 3.1 What does Assistance By Way Of Representation (ABWOR) Cover? ABWOR covers the cost of a solicitor preparing your case and representing you in most civil cases in the Magistrate s Court and/or Family Proceedings Court. These cases include separation, maintenance, Children Order, protection orders in respect of domestic violence (known as Non-Molestation Orders) and paternity proceedings. It is also available to applicants in relation to advice and proceedings before a Mental Health Review Tribunal and prisoners making applications to the Parole Commission for Northern Ireland. 3.2 How do I Apply for Assistance By Way of Representation? Apply through your solicitor who will fill in the Green Form. Except in the case of PACE, Prevention of Terrorism and some Children Order cases, the person applying for ABWOR must show that there are reasonable grounds for taking, defending or being a party to the proceedings. The Commission has the power to grant or refuse ABWOR. ABWOR is available free to any person brought before a Magistrate under Article 44 or 45 of the Police and Criminal Evidence (Northern Ireland) Order 1989 (PACE), and is also free in certain Children Order cases and for proceedings before the Mental Health Review Tribunal Financial Eligibility The same income conditions apply as for Legal Advice and Assistance, although the savings limit is different. Even if your savings do not qualify for Legal Advice and Assistance, you will still qualify for Assistance by Way of Representation if you have savings of up to 3,000 plus dependants allowances, or if you are in receipt of a passport benefit, as specified by legislation which currently are: Income Support, Income Based Job Seeker s Allowance, Guaranteed State Pension Credit or Income Related Employment and Support Allowance. 3.4 Assessment of Financial Eligibility Your solicitor is responsible for determining your financial eligibility for assistance under the ABWOR Scheme. Your solicitor will base the assessment on your income and capital for the 7 days up to and including the date upon which you signed the Legal Advice and Assistance Form. The Commission conducts random checks on the information provided by applicants under all these Schemes. Therefore, it is important that the information you give to your solicitor is accurate. You should let your V2 January

14 solicitor know of any change in your financial or personal circumstances. 3.5 Do I Qualify Financially? If you apply under the ABWOR scheme in a type of case for which free ABWOR is not available, you must be able to show that your savings AND your income are within the current financial limits. If you have a partner, (a partner being someone with whom you normally reside as a couple including a person of the same sex), your partner's savings and income will be included unless: You live separately and apart. There is a conflict of interest between you in relation to the matter (if, for instance, you want advice about a divorce) or the issue is about domestic violence from your partner (Non molestation orders). It would not be fair or practical to do so. If you are applying to the Court for a Non Molestation Order for protection from domestic violence, you will be financially eligible for assistance under a variation to the ABWOR Scheme. This is known as the Domestic Violence Scheme. The rules for this type of application are different as there is no financial limit to the amount of income and/or capital you can have before you qualify. Your solicitor will assess your means but, depending on your financial circumstances, you may have to pay a substantially higher contribution towards the cost of your case. Your solicitor will be able to provide you with more information in relation to the Domestic Violence Scheme and how this affects you. 3.6 Savings: Do I Qualify? If you are in receipt of a passport benefit (See 3.3) all savings are disregarded under the ABWOR Scheme. If you are not in receipt of a passport benefit, add up your savings. This includes the value of your savings, whether in cash, investments, money in a bank or the National Savings Bank whether in Northern Ireland or elsewhere and anything you own of substantial value, such as antiques, artwork and jewellery. Leave out: The value of the house you live in Your household furniture and effects, clothing and any tools of your trade The value of what you are seeking advice about. You should deduct allowances from your savings for any dependants. Dependants, for this purpose, are your wife or husband (but only where their capital and income are added to yours), persons cohabiting, civil partners, V2 January

15 dependent children and relatives wholly or substantially maintained by you. Allow: 3,000 if you have no dependants 3,335 it you have one dependants 3,535 if you have two dependants l00 for each extra dependant. What is left after making these deductions is your disposable capital. If this exceeds 3,000 you will not be eligible. 3.7 Income: Do I Qualify? If you are receiving Income Support, Income Based Job Seekers Allowance, Guaranteed State Pension Credit or Income Related Employment and Support Allowance, you will be eligible for free assistance under the ABWOR Scheme. If you are not receiving Income Support, Income Based Job Seekers Allowance, Guaranteed State Pension Credit or Income Related Employment and Support Allowance, your solicitor will take your actual income plus your partner's income in the past seven days and deduct from it: (i) Income Tax and National Insurance contributions (ii) against your partner whether or not there is a conflict of interest. Where you are separated or divorced, deduct the actual maintenance paid by you in the past seven days (iii) in the case of each dependant child or dependant relative aged under 20 There are built-in allowances for rent, rates and other expenses. What is left after making these deductions is your disposable income. You qualify for ABWOR if your disposable income is per week or less and your disposable capital is 3,000 or less. Payment of Disability Living Allowance must be declared in the assessment but is disregarded from the disposable income calculation. 3.8 Do I Pay a Contribution? You will not be asked to pay any contribution out of your savings; neither will you pay anything if your disposable income is less than 107 per week. However, if it is between 107 and 234 your contribution will be as follows: V2 January

16 Green Form Contribution Table from April 2011 Weekly Disposable Income Disposable Income not Exceeding Maximum Contribution Disposable Income not Exceeding Maximum Contribution 100 per week NIL 170 per week per week per week per week per week per week per week per week per week per week per week per week per week per week per week per week per week per week per week 134 Your solicitor will usually ask you to pay the contribution before any work is done, but if this is inconvenient the solicitor may accept payment by installments. You should ask the solicitor whether he/she will agree to this before the interview starts. In any case, the maximum contribution you should be asked to pay will be 134. You cannot be asked to pay more than your maximum contribution. For instance, if your maximum contribution is calculated as 28 and the solicitor's bill is 70, the balance will be paid by the Legal Aid Fund (unless money or property has been recovered or preserved on your behalf - see 3.9). 3.9 What happens if money or property is recovered or preserved? Where money or property is recovered or preserved under ABWOR your solicitor must use this to pay his/her bill if the bill is more than your contribution, should any contribution be payable. For example, if your solicitor recovers 400 for you and his/her bill is 352, you will (assuming you have not paid a contribution) receive 48. There are exceptions to this rule. The charge will not apply where it can be shown it would cause grave hardship or distress, or if it could be enforced only with unreasonable difficulty because of the nature of the property. The Statutory charge does NOT apply if the money or property recovered in a matrimonial/family case consists of maintenance payments; payments which are made on a weekly or monthly basis or payments up to 2,500. Your solicitor will be able to advise you if the statutory charge will arise in the particular circumstances of your case. V2 January

17 3.10 Repeated Applications for the same matter You must tell your solicitor if you have had Legal Advice and Assistance from another solicitor about the same matter. The new solicitor must get authority from the Commission before he/she can give more advice and assistance. The solicitor can refuse to give Legal Advice and Assistance, and need not explain why. However, he/she may be required to inform the Commission of his reasons for such refusal The Order and Regulations The provisions relating to the form of Legal Aid dealt with in Part 3 of this booklet are set out in the Legal Aid, Advice and Assistance (Northern Ireland) Order 1981 and the Legal Advice and Assistance Regulations (Northern Ireland) 1981, as amended. V2 January

18 PART 4 Legal Aid for Civil Court Proceedings 4.1 What is Civil Legal Aid? Anyone, irrespective of where he or she is resident, who becomes, or may become involved in civil court proceedings in Northern Ireland, should initially consult a solicitor under the Legal Advice and Assistance provisions (Green Form) outlined in Part 2. The solicitor will be able to tell that person how to obtain Legal Aid for such proceedings. Part 4 gives details about the Legal Aid available under a Civil Aid Certificate for civil court proceedings which are not covered under the ABWOR Scheme (See Part 3). You may have had Legal Advice and Assistance over a legal problem but your solicitor has not been able to resolve it. He/she may then advise you that your case should be taken to court. Civil Legal Aid covers all the work leading up to and including the court proceedings and representation by a solicitor and, if necessary, a barrister. You should seek the advice of your solicitor about applying for Civil Legal Aid even if you do not qualify for Legal Advice and Assistance. This is because, although the income limit for Civil Legal Aid is similar to that for Legal Advice and Assistance, the savings limit is higher. 4.2 What kinds of Courts and cases are covered? Civil Legal Aid is available for cases in: The Supreme Court Court of Appeal High Court Divisional Court Lands Tribunal Enforcement of Judgements Office Civil Legal Aid is NOT available for proceedings before a Coroner's court (see part 5) and most tribunals or for proceedings involving defamation including libel and slander. However, advice may be obtained about these proceedings under Legal Advice and Assistance (See Part 2). Your solicitor will be able to advise you if you can apply for funding under the Special Exceptional Grant Scheme (see Part 5). Civil Legal Aid is not available for court cases outside Northern Ireland, except where a case is referred to the European Court at Luxembourg (See Annex A). V2 January

19 4.3 How do I apply for Civil Legal Aid? Apply through your solicitor. Ask him/her to fill in the Legal Aid forms, which he/she will have, and send them to the Legal Services Commission. It is important that you give your solicitor accurate information to ensure that the forms are filled in correctly. Incorrectly completed forms could stop or delay you getting Legal Aid. Your solicitor can be paid for filling in the forms under Legal Advice and Assistance, if you qualify for it (See Part 2). The officer at the Assessment Office will calculate whether you qualify financially. He/she will then inform the Commission who will decide whether your application satisfies the merits test (See 4.5). Your solicitor may not be prepared to deal with your case until the Certificate is issued which confirms that you have been granted Legal Aid. This is because a Certificate does not cover your solicitor for any work done before a certificate is issued. 4.4 What happens if my case is urgent? If your case is urgent, your solicitor can apply for Emergency Legal Aid. This can be granted immediately subject to the statutory tests.. Emergency Legal Aid lasts only until a decision has been taken on your full application for Civil Legal Aid. When you apply for Emergency Legal Aid you must agree to cooperate with the assessment officer in his/her enquiry into your financial position and also to pay any contribution that is assessed. 4.5 How do I qualify for Civil Legal Aid? To qualify for Civil Legal Aid, you must: Qualify financially (See section 4.6) and Show that you have reasonable grounds for taking or defending or being party to proceedings and that it is reasonable to grant you Legal Aid in the circumstances of your case. This is called the merits test. Example... The Merits Test Provided you are financially eligible, you might have reasonable grounds for taking a court case against a shop; but the shop has gone out of business and the owners have no assets or insurance cover so you are unlikely to get any compensation. Civil Legal Aid would be refused as it would not be reasonable to grant it in the circumstances of your case. Your application will be considered by the Commission who has to be satisfied that it is reasonable to grant you Legal Aid. The Commission will consider all questions of fact and law arising out of your application. The Commission may decide to grant you a limited Certificate, for example, for the V2 January

20 purpose of further investigation to be carried out to establish if your case has merit. The Commission may also refuse to grant you Legal Aid. If your application is refused on the Merits Test you have a right to appeal to the Appeals Panel which is an independent panel of solicitors and barristers. The refusal letter will explain how to go about it. There are time limits for appealing so you should consult your solicitor immediately. 4.6 Who decides whether I qualify financially? The Commission is not responsible for applying the means test in respect of applications for Civil Legal Aid. The means assessment is undertaken independently by Assessment officers at the Legal Aid Assessment Office of the Social Security Agency. When applying for Civil Legal Aid you are required to give details of your income, capital and outgoings so that the Legal Aid Assessment Office can determine whether your disposable capital and disposable income are within the financial limits and the maximum amount of any contribution which you may be required to make. It is, therefore, of the utmost importance that you promptly reply to any correspondence you receive from the Legal Aid Assessment Office, and seek advice from your solicitor, when required. The assessment officer will calculate if you qualify financially for Civil Legal Aid and if you have any contribution to pay. To do this he/she may need to see evidence of your finances, including bank statements, savings books and details of your earnings. The financial application form will tell you what is required. Remember that the finances of both you and your partner must be added together unless: You live separately and apart There is a conflict of interest between you (say, in a divorce case). If you do not agree with the officer's assessment of your income or savings, you may ask the Commission for details of the way it has been assessed and, if necessary, to request the Legal Aid Assessment Office to carry out a review of the assessment. Financial Eligibility 4.7 Do I Qualify Financially? You must be able to show that your savings and your income are within the current financial limits. Children are now assessed in their own right and not under their parents' financial position. The current financial limits apply to V2 January

21 children and adults alike. Pensioners benefit from an exception to these limits. (See Section 4.17). If you are granted Civil Legal Aid and your finances, liabilities or dependants change, you must tell the Commission immediately. 4.8 Income: Do I Qualify? Disposable Income The Assessment Officer assesses your income for the period of 12 months from the date you sign the Legal Aid financial eligibility form and deducts Income Tax, National Insurance, superannuation, pension contributions, employment expenses (i.e. fares to work, trade union membership and child care where reasonable), rent, and other rates, mortgage payments and allowances for your family and dependants. Disability Living Allowances, Attendance Allowance and Constant Attendance Allowance paid in relation to a disablement pension are disregarded when calculating income. 4.9 Allowances for Dependants The allowances for your family and dependants are: yearly weekly Partner 2, Dependent children and relatives aged: 18 and under 3, and over 3, What is left is your disposable income. If it is 9,937 or less ( 10,995in the case of personal injury claims) you will qualify on income Income: Do I Have To Pay a Contribution? If your disposable income is 3,355 you pay no contribution. If it is between 3,355 and 9,937 (or 10,955 in the case of personal injury claims), you have to pay towards the cost of your case from your income. The contribution will be a third of the excess of any disposable income above 3,355. V2 January

22 Contributions 4.11 Calculating the Contribution Example of calculating the contribution: Married couple with 2 children aged 12 and 8, partner is not employed. Capital less than 3,000 Earnings 22, Child Benefit 1, Total Gross Income 23, Allowances: Spouse 2, Child aged 12 3, Child aged 8 3, Allowances for Mortgage 1, Rates 2, National Insurance and Income Tax approx. 9, Total Allowance 18, Total Gross Income 23, Minus Total Allowances 18, Disposable Income 5, Disposable Income 5, Less free Legal Aid Limit 3, Balance 2, , divided by 3 = Maximum Contribution Maximum contribution payable by 12 monthly installments of 1x *NB The above example also applies to co-habitees and civil partners and is for illustration purposes only How the contribution is paid The Legal Aid Assessment Office of the Social Security Agency will inform the Commission whether you qualify for Legal Aid and the amount of your contribution, if any. The Commission will decide on the legal merits of your case and whether the statutory criteria are met and if it is reasonable to grant you Legal Aid. If both decisions are in your favour, but you are not entitled to 1 Based on average repayments on outstanding mortgage of 50,000 2 Based on average Belfast rates 3 Balanced is rounded to nearest 50p V2 January

23 free Legal Aid, the Commission will send you an Offer of a Certificate. You do not have to pay anything until you accept the Offer. If you accept the Offer and a contribution is payable from capital, it must be paid in full before the Legal Aid Certificate is issued. Where the contribution is payable from income, you will only be required to pay by monthly installments over a period of 12 months. You will not always be asked to pay your maximum contribution; this depends on the likely cost of your case Changes in your financial circumstances. If your income increases within 12 months of your application you must inform your solicitor who will notify the Commission and your means may be reassessed. If your income decreases during the 12 month period you may apply to have your means re-assessed and your maximum contribution may be reduced. If your capital increases or decreases you must inform your solicitor. REMEMBER IT IS CRUCIAL THAT YOU REPLY TO ALL CORRESPONDENCE. FAILURE TO DO SO MAY BE DEEMED NON-CO-OPERATION AND YOU MAY BE DISQUALIFIED FROM RECEIVING LEGAL AID Savings: do I qualify? Disposable Capital Yes, if you are receiving Income Support, Income based Job Seekers Allowance, Guaranteed State Pension Credit or Income Related Employment Support Allowance. Otherwise add up your savings. These include: Cash savings, shares, bank or National Savings Bank accounts, National Savings Certificates, Premium Savings Bonds. Money that can be borrowed against the surrender value of any life insurance or endowment policies (90 per cent money paid in, less sums already borrowed). Anything you own of substantial value, such as antiques, artwork jewellery, etc Value of any dwelling other than that in which you live including holiday homes or other properties regardless of where the properties are located. But do not include: The value of the house you live in Your furniture and fittings, clothes and any tools of your trade The value of the thing(s) that your case is about. For instance, if you are in dispute about who owns a caravan, leave out its value V2 January

24 The value of engagement rings, wedding rings and eternity rings Disposable Capital What is left after making these deductions is your disposable capital. If your disposable capital is 6,750 (or 8,560 in personal injury claims) or less you will qualify for Civil Legal Aid. Even if your disposable capital/savings is more than these limits you may still be offered Civil Legal Aid if your case is likely to be expensive Savings: Do I have to pay a contribution? If your disposable capital is 3,000 or less, or if you are receiving a passport benefit (see section 2.5), you will not have to pay a contribution. If your savings are more than 3,000 you will have to pay a contribution; this will be required at once. The maximum you will be asked to pay is all your disposable capital over 3, Pensioners The calculation of disposable capital is different for some pensioners. Men of 65 or over and women of 60 or over may benefit from an extra allowance. If their annual disposable income is less than 2,767 (excluding net income earned from capital) then certain amounts of savings are disregarded so that they can still qualify for Legal Aid despite their total savings being more than the usual capital limit. The amounts that are disregarded are set out below. Remember this only applies to pensioners on disposable incomes of less than 3,355, excluding net income earned from capital. This means that capital which produces an income on which the applicant lives is not taken into account for assessing disposable capital. Any pensioner with a disposable income below 3,355 per annum would have an amount disregarded from their capital on the following scale: Annual disposable income capital (excluding net income from capital) Amount of disregarded Up to , , , l,270 20,000 l,271-1,570 15,000 1,571 - l,870 10,000 l,871-3,355 5,000 V2 January

25 4.18 Contribution covering a second Certificate In the normal way, if another Civil Aid Certificate is issued later for an appeal to a higher court, no further contribution is payable in respect of the new proceedings, unless there has been a change in your means. The Financial Position after the Case has Ended 4.19 What if I win my case? Your solicitor, as well as your barrister (if you have one), are entitled to be paid their reasonable costs. If you win your case, the amount you have to pay will depend on whether the other side is ordered to pay your costs and does so. EXAMPLE: You paid a contribution of 400. The costs are awarded against the other person and they pay. The whole of the contribution is returned to you. However, it should be remembered that the opponent may not be able to pay the costs awarded against him at once and may only pay by installments. In this event, there may often be a considerable delay before the contributions can be returned to you. If the opponent tries to avoid paying the costs, in spite of having been ordered to do so, it may be necessary to take further enforcement proceedings against that party. This will probably increase the costs. *These examples are for illustration only and bear no relation to actual costs. The Statutory Charge 4.20 What happens if you are awarded money by the Court or recover property as a result of the proceedings? Even if you have paid no contribution and win your case you may find that you pay something towards the proceedings if some or all of your costs are not met by the opponent. This is called "the Statutory Charge". The Commission is required by law to enforce the statutory charge. There are limited exceptions where the statutory charge does not apply and your V2 January

26 solicitor will advise you at the outset and throughout your case if the charge applies to your case. The purpose of the statutory charge is to recover for the Legal Aid fund the costs of the case where the Legal Aid Fund has paid your costs and some or all of your costs have not been paid by your opponent and you have recovered money or property from which those costs can be met. You will, therefore, pay the costs of the proceedings out of the damages recovered by you, which you would do if you were not legally aided. Further information on the statutory charge is available in the booklet Paying for your Legal Aid The Statutory Charge which is located in the Publications section of the Commission s website at What if your costs are paid? Often, if the court orders the other party to pay the costs as well as the damages, you will receive all of the damages: *EXAMPLE: You paid no contribution. The costs are 3,600, the opponent paid 14,000 damages and the 3,600 costs. The whole of the damages are paid to you. These examples are for illustration purposes only and bear no relation to actual costs What happens if I loose my case? If you lose your case the most you will normally have to pay towards your solicitor s and barrister s costs will be your maximum contribution, if any. However, the Judge has power to order you to pay part or all of your opponent s costs out of your own resources. The amount you may be ordered to pay will depend on your means and on your conduct in relation to the case The Order and Regulations. The provisions relating to Legal Aid for civil court proceedings are set out in Part 1 of the Legal Aid, Advice and Assistance (Northern Ireland) Order 1981, as amended, and the Legal Aid (General) Regulations (Northern Ireland) 1965, as amended. The provisions dealing with the statutory charge are in Article 12 of the Legal Aid, Advice and Assistance (Northern Ireland) Order 1981 and the General Regulations. V2 January

27 PART 5 Special Exceptional Grant Scheme 5.1 What is the Special Exceptional Grant Scheme? This Scheme covers applications for funding under Article 10A of the Legal Aid, Advice and Assistance (NI) Order This Article empowers the Minister of Justice to provide legal aid in connection with excluded proceedings, which are proceedings outside the scope of Legal Aid, in circumstances specified in guidance issued on the 15 December This guidance is available in the publications section of the Commission s website at Do I qualify for funding under this Scheme? Your solicitor will be able to advise you if you can apply for funding and of the conditions and procedures which this Scheme involves. It may, for example, be possible for you to obtain funding for representation at an Inquest. V2 January

28 Part 6 Legal Aid in Criminal Court Proceedings 6.1 What Legal Aid covers Legal Aid in Criminal Court proceedings provided under Part Ill of the Legal Aid, Advice and Assistance (Northern Ireland) Order 1981, covers representation by a solicitor, and if necessary a barrister, in the Magistrate s Court and the Crown Court, in all matters relating to the criminal proceedings. This includes applications for bail (except applications to the High Court for bail that has already been refused by the Magistrate s Court for which an application for Civil Legal Aid may be made). If you are unsuccessful in defending your case, your solicitor or barrister can advise on the prospects of an appeal against conviction and/or sentence. Strict time limits apply so you should seek the advice of your solicitor as soon as possible. It should be noted that a Criminal Aid Certificate can be granted only to a person either charged with a criminal offence or brought before a criminal court to be dealt with, and not to someone seeking to bring a private prosecution. 6.2 How to obtain Legal Aid (a) (b) If you receive a summons to appear before a Magistrate you should at once contact a solicitor who will be able to advise you under the conditions set out in Part 2 of this booklet. If you are held in custody, you should request that the Police communicate with the solicitor of your choice. If you do not know the name of any solicitor, the Police Station will have lists of solicitors willing to attend the Police Station. All advice and assistance from a solicitor at a Police Station or holding centre under the Police and Criminal Evidence (Northern Ireland) Order 1989 (PACE) is free. Except for the Provisions of PACE (outlined in paragraph 6.1), Legal Aid for representation before a criminal court is completely at the discretion of the court. Before it can be granted, (except where the charge is murder) the court must be satisfied that it is in the interests of justice that Legal Aid should be given and, in all cases, that your means are such that you need assistance in meeting the cost of your own defence. The application for Legal Aid must be made to the court itself, and you will be required to complete a statement as to your financial means. The court may ask the Social Security Agency to enquire into the financial means of any applicant. V2 January

29 6.3 Financial Limits Unlike the other Legal Aid schemes, Legal Aid in criminal court proceedings has no specified financial eligibility limits. But, as noted above, the court must be satisfied that your means are such that it is desirable in the interests of justice that you be granted Legal Aid. 6.4 Contributions If you are granted Legal Aid in criminal court proceedings you will not be required to make any financial contribution towards your costs. However, if the oral or written statement of means given to the court is incorrect, either wilfully or in error, the court may take action to see that such costs are not paid by the Commission or to recover all costs paid. 6.5 The Order and Regulations The law relating to Criminal Legal Aid are set out mainly in Part Ill of the Legal Aid, Advice and Assistance (Northern Ireland) Order 1981, and in the various regulations, Authorisations and Directions made under that Order.. Appeals from the Crown Court to the Court of Appeal or to the Supreme Court do not come within the Legal Aid, Advice and Assistance (Northern Ireland) Order 1981, but come under the Criminal Appeal (Northern Ireland) Act, V2 January