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PUBLIC FUNDING

In some family cases public funding (what used to be called legal aid) may be available to you. This will depend on your financial eligibility and the merits of the case. Public Funding is now dealt with by the Legal Services Commission (previously called the Legal Aid Board)

Financial eligibility

Contrary to popular opinion, public funding is not just available if you are claiming benefits but it may also be an option for you if you are working. There are a number of different types of funding and the financial limits are set out below.

Types of public funding

1. Legal Help
This is a “mini” version of public funding. It may be available for you when you just require your solicitor to write a few initial letters, or where you need some initial advice. Most importantly, it will also cover the legal costs and court fees for a divorce.

Your solicitor will carry out a number of calculations to assess whether your disposable income and capital comes within the financial limits.

If you are claiming Income Support or Income based Job-Seekers Allowance your income will not need to be assessed, but you will still be subject to the capital limits.

2. Full Public Funding
There are a number of situations where you will be able to apply for a public funding “certificate” - this is full public funding and there are several different types. A full certificate will be necessary where the work involves more than initial advice or correspondence.

If you are in receipt of Income Support or Income Based Job Seekers Allowance you will be automatically financially eligible for funding, although whether you are granted a certificate will also depend on the merits of the case.

In some cases you may be eligible for a certificate but with a monthly contribution. The assessment is carried out by the Legal Services Commission.

a. Help with Mediation

If you are attending mediation - for example to discuss how the finances are to be divided or contact with the children - then Help with Mediation is available.
b. General Family Help

This certificate will be granted for example where negotiations are taking place between solicitors regarding the financial aspects of the divorce or detailed discussions over contact to the children, or where the children will be living.

c. Legal Representation

You will need a certificate covering legal representation where negotiations have not reached an agreement and it is necessary to issue an application at court. This will mean that your solicitor will be able to represent you at the court hearing.

d. Emergency Representation

In circumstances where an urgent court hearing is needed, for example an emergency injunction, your solicitor will be able to grant a certificate themselves provided they have a franchise from the Legal Services Commission and provided you fall within the means and merits tests. This will mean they can represent you if a court hearing is needed on the same day you initially see your solicitor.

The Statutory Charge

When you are granted any level of public funding your solicitor will tell you about something called the statutory charge. Generally speaking, where you recover or preserve money or property over £3000 you will be expected to repay some or all of your legal costs to the Legal Services Commission.

When an agreement has been reached in mediation and you are in receipt of a Help with Mediation certificate however, the statutory charge will not apply.

If you have been making monthly contributions these will be taken into account when assessing the level of costs you still have to pay. In certain circumstances it may be possible to defer payment (eg where the only asset you have recovered is a place to live) or pay the charge by instalments. In these cases however interest will be payable.

You may think that, if you have to repay your costs anyway, then you may as well instruct your solicitor on a private basis. If you are eligible for a certificate it will always be better for you to instruct your solicitor under the certificate, as your solicitor’s hourly rate will be much lower, and therefore your legal costs will be lower.

Please feel free to contact us if you need any more information about costs and/or eligibility for public funding.