Legal Aid Engagement Paper – A Simpler Fairer Approach to Means Testing

Benefit ‘passporting’

At present, to be eligible for legal aid, an applicant’s legal matter must be within the scope for legal aid and they must pass both a merits and a financial eligibility test. The financial eligibility test looks at a person’s income and capital and sets thresholds to determine whether they are eligible for help. There are some types of legal aid which are exempt from the financial eligibility test.

The procedure for considering applications for criminal legal aid and civil legal aid are quite different. Criminal legal aid applications are made to the Court and governed by court rules and procedures. Applications for Advice and Assistance are made to the solicitor providing the services and are assessed based on the applicants weekly earnings. Applications for representation are made to the Legal Services Agency and decided by reference to an applicant’s annual earnings, with different rules applying depending on whether the representation sought will be in a ‘higher’ or ‘lower’ court.

In the majority of legal aid applications, however, the tests are not applied, because eligibility for legal aid is instead established through ‘benefits passporting’.  This is the process by which receipt of one a list of specified means tested benefit payments is accepted as establishing eligibility for legal aid.  This mechanism relies on the simple principle that the eligibility rules for benefit entitlement, which an applicant in receipt of a relevant benefit will necessarily have met in their assessment by DfC, can substitute for the legal aid test.

The ‘passport’ benefits are:

• Income Support (IS);
• Income-based Jobseeker’s Allowance (JSA);
• Guarantee Credit element of Pension Credit (GC);
• Income-related Employment and Support Allowance (ESA); and.
• Means-tested Universal Credit

Case for change:

There are five completely different tests used to determine eligibility to the different levels of service available for legal aid.

They often require submission of extensive documentary evidence to allow detailed and precise calculations to be made.

The overall process is slow, both for applicants and adjudicators who process the applications, it is too complex and acts as a deterrent to actually going through with an application with many respondents saying it was “simply not worth their time”.

Response:

Around 90% of applications for advice and assistance are already awarded due to a passporting benefit. This figure drops to around 80% for rep lower cases and roughly 65% for rep higher awards.  It is estimated that in Criminal legal Aid more than 80% of cases are deemed to be eligible due to receipt of benefits.

Checking and confirming benefit entitlement is very quick and simple as the Agency has access to the DfC “Searchlight” system which allows them to check for all benefits that are received by an applicant.

Benefit passporting is currently operating as a simple, fast and fair means of establishing financial eligibility for the purpose of legal aid. One option might be that benefit passporting is retained in its current form as the mainstay of financial eligibility testing.

Risks/Obstacles

Nearly 300,000 people in Northern Ireland are in receipt of a qualifying passport benefit and that number continues to increase through time. However, there are some groups excluded from applying for passport benefits. While we propose a new simplified means test below for those not eligible, we want to ensure that there are no other significant impediments or drawbacks with this option.