Legal aid – guidance

Criminal legal aid: means testing

Determine financial eligibility for legal aid: check household income, calculate living costs, enforcement action, apply for hardship review.

Overview

The means test process determines if a client qualifies for legal aid to cover some or all of their defence costs. It takes into account:

  • income
  • family circumstances, eg number of children
  • essential living costs, eg mortgage or rent

Eligibility also depends on the type of case and where it’s heard.

Means testing is one aspect of determining if someone qualifies for criminal legal aid as set out in Legal Aid, Sentencing and Punishment of Offenders Act 2012 (LASPO). All clients must also pass the Interests of Justice test (IoJ) to qualify for legal aid.

If an applicant fails the means test but believes that paying for their legal costs would cause financial hardship, they can ask for a review of their additional expenses (not yet taken into account).

Use the calculator

You can use the calculator before submitting an application to quickly check if your client is likely to pass the means test. The calculator may be particularly useful if you’re trying to estimate eligibility for more complex means cases or to estimate contribution levels in the Crown Court.

Passporting

The client will passport the means test to automatically get free legal aid if they’re under 18 or receive:

  • Income Support (IS)
  • income-based Jobseeker’s Allowance (JSA)
  • Universal Credit (UC)
  • State Pension Guarantee Credit
  • income-based Employment and Support Allowance (ESA)

They must have already passed the IoJ.

Find out more about how to make an application for legal aid.

If your client receives one of the passporting benefits, they need to provide their National Insurance number (unless your client has been remanded into custody by the court). Administrative staff will then confirm your client’s status.

If your client has missed their benefits sign-on date, it’s possible to search over a longer period of time as long as their sign-on date is on CRM14.

Initial means test

You need to work out the applicant’s gross annual income and family circumstances. Gross annual income is weighted to account for the number and ages of family members. The resulting value is known as ‘adjusted annual income’.

Use this formula: gross annual income divided by weighting equals adjusted annual income.

Calculate gross annual income

Take the client’s gross income (before tax and National Insurance deductions) and add their partner’s gross income. If your client has no partner, then base the calculation on their single income.

The means test includes income from employment and/or self-employment, as well as income from:

  • relatives and friends
  • pension
  • property (including rent from lodgers)
  • student loan payments
  • interest from savings
  • maintenance received from former partners

You also need to include any benefits that aren’t listed above as passporting benefits or included in the Criminal Legal Aid Manual as ‘disregarded benefits’, eg:

  • Child Benefit
  • Tax Credits
  • Incapacity Benefit
  • Industrial Injuries payments
  • Disablement Benefit
  • Savings Pension Credit
  • contribution-based JSA

Read Annex 5 of the Criminal Legal Aid Manual or contact your National Courts Team (NCT) for more information (details below).

Calculate weighting

  • Single adult: 1.00 + any children
  • Couple: 1.64 + any children
  • Each child: based on their age at their next birthday (see table)
Age of child (next birthday) Weighting
0-1 0.15
2-4 0.30
5-7 0.34
8-10 0.38
11-12 0.41
13-15 0.44
16-18 0.59

How the results work depending on case type

Adjusted income Magistrates’ court Commital for sentence Appeal to the Crown Court Crown court trial
£12,475 or less funded funded funded funded, no income contribution
More than £12,475, less than £22,325 depends on full means test depends on full means test possible fee, depends on full means test and outcome of appeal possible income contribution, depends on full means test
£22,325 or more not funded not funded depends on full means test and outcome of appeal possibly not funded* or possible income contribution, depends on full means test

*Applicants with a household disposable income of £37,500 or more are not eligible for legal aid for a Crown court trial.

Example

An applicant for legal aid has a gross income of £20,800 and his partner’s is £11,000. They have a child aged 9 next birthday, a child aged 5 next birthday and a child aged 2 next birthday.

The applicant’s adjusted income is calculated as follows:

Applicant and family Weighting value
Applicant 1.0
Partner 0.64
Child 1 0.38
Child 2 0.34
Child 3 0.30

The total weighting factor is 2.66.

The total income received in this family is £31,800. Divide this figure by 2.66 to get £11,955, so the applicant passes the initial means test and gets funding.

Full means testing

Use the full means test if the adjusted annual income was found to be more than £12,475 and less than £22,325.

The full means test works out your client’s ‘disposable income’. It’s calculated by deducting living costs from the client’s gross annual income. The adjusted income from the initial means test is not valid for the full means test.

The client’s living costs include:

  • tax and National Insurance
  • annual housing costs
  • annual childcare costs
  • annual maintenance to former partners and any children
  • an adjusted annual living allowance

Calculate adjusted living allowance

For a single person the allowance is £5,676. This covers an average person’s essential spending on items like food, clothing and fuel.

The adjusted allowance is weighted to take account of the size of an applicant’s family - use the same weighting values for initial means testing.

How the results work

Adjusted income Magistrates’ court Commital for sentence Appeal to the Crown Court Crown Court trial
£3,398 or less funded funded funded no income contribution
more than £3,398 not funded not funded possible funding, depends on outcome of appeal eligible with income contribution as long as disposable income is less than £37,500

Example

An applicant and his partner have a gross annual income of £49,500 and 2 children aged 12 next birthday and 1 next birthday.

The applicant’s adjusted allowance is calculated as follows:

Applicant and family Weighting value
Applicant 1
Partner 0.64
Child 1 0.15
Child 2 0.41

The weighting factor is 2.20.

So their weighted annual living allowance cost is £12,487 (£5,676 x 2.2).

They also have rent, childcare and tax and National Insurance costs of £28,340. This is deducted from their gross annual income (£43,500), leaving a disposable income of £2,673. This applicant qualifies for legal aid.

Complex means

A small number of applicants may have complex financial circumstances, eg if they’re:

  • self-employed
  • in a business partnership
  • a company director
  • in the armed forces
  • subject to a restraint or freezing order

They’re still means tested and such cases have to be referred to the NCT, which works with solicitors to collect any further information required. The NCT will notify HMCTS or the relevant Criminal Applications Team (CAT) of the final decision.

For details on how complex means are assessed see section 16.2,19.1 and 19.6 of the Criminal Legal Aid Manual or contact NCT (details below).

Means testing and eligibility forms

You must give the client’s means information in the application for legal aid.

Complete the following forms:

  • CRM14 - Interests of Justice test and financial statement
  • CRM15 & CRM15c - financial statement and continuation of questions
  • In certain areas you can also apply online using the CRM14 eForm - see link for further information

You may also need to access CRM16 - application for review on the grounds of hardship (see below).

Once you have your client’s means information then you can complete the legal aid application and send it to the relevant magistrates’ court/HMCTS administration centre or LAA CAT for consideration.

Enforcement action

If your client fails to make payments after they’ve received contribution orders, they’ll face enforcement action.

This also applies to clients who fail the means assessment, appeal to the Crown Court and then abandon, or are unsuccessful in, their appeal.

They will have to pay towards the cost of the appeal:

  • £500 for an appeal against conviction abandoned or dismissed
  • £250 for an appeal against conviction dismissed but sentence is reduced
  • £250 for an appeal against sentence or order (eg an ASBO) abandoned or dismissed

Where payment is required, clients will be contacted after the outcome of the appeal.

Where payment is not made or a payment arrangement is not maintained, the LAA continues to instruct Rossendales to enforce unpaid contributions.

If payment is not made interest will be charged at 6% – enforcement action may follow.

The costs of any action will be added to the amount clients owe.

Enforcement options include but are not limited to:

  • charging order secured against any property owned
  • 8% interest on charging orders
  • third party debt order against any money deposited in an account
  • attachment of earnings order, where payment can be deducted at source
  • High Court enforcement, via writ of Fi Fa
  • distress warrants, where goods can be seized, removed and sold
  • order to clamp and/or sell any vehicle owned

See guidance on the Motor vehicle order scheme guidance (PDF, 215KB, 19 pages) for practical guidance on what to do if you are subject to an application for a clamping order or vehicle sale order and wish to contest the application. This guidance may also be relevant to any other person who shares ownership of the vehicle or who relies on the vehicle for transport.

Money recovered will be returned to the legal aid fund.

Contacting clients

Collection and enforcement agency, Rossendales, is instructed by the Legal Aid Agency to collect and, if necessary, enforce non-payment.

Assessment and recovery of applications

This information can be found in the:

Exceptional circumstances: hardship and eligibility reviews

Magistrates’ court hardship application

If your client still believes they can’t afford to pay for their case or are likely to be refused - even though they failed the means tests - they can make a hardship application. The LAA will consider further expenditure, eg loans, credit card debt, civil legal aid costs and utility arrears, as well as the estimated costs of the case.

NCT will assess whether additional expenditure takes your client’s disposable income below £3,398.

Crown Court eligibility review

If your client still believes they can’t afford to pay for their case or are likely to be refused - even if their disposable income following the means test is £37,500 or more - they can apply for an eligibility review.

The client needs to give details of types of expenditure that aren’t taken into account in the means tests. You should also estimate the likely private costs of their case.

If their application is successful, the LAA will calculate whether they’re liable for any income contribution towards costs.

Crown Court hardship application

If your client is under a Crown Court representation order but asked to make monthly contributions from their income - or are likely to be granted legal aid with an income contribution - they may want additional expenditure to be considered. They need to make a Crown Court hardship application.

A revised contribution order will be issued if your client’s disposable income is reduced. If it’s £3,398 or less, the contribution order will be revoked.

How to apply for a hardship or eligibility review

The applicant can seek a hardship review at the same time as their initial legal aid application or afterwards. They must complete a CRM16 hardship application form and submit it to the relevant magistrate’s court/HMCTS administration centre or LAA office with supporting evidence. The application will go to the NCT.

Full details of the eligibility review and the hardship review can be found in section 22 of the Criminal Legal Aid Manual.

Contact the National Courts Team

Annex 6 of the Criminal Legal Aid Manual tells you whether your client’s application has been referred to the NCT in Nottingham or Liverpool.

The National Courts Team
Legal Aid Agency
1st Floor, Fothergill House
16 King Street
Nottingham
NG1 2AS

DX: 10035 Nottingham

Phone: 0115 852 6000

Email:Nottingham.NCT@legalaid.gsi.gov.uk

The National Courts Team
Legal Aid Agency
Level 6
The Capital
Union Street
Liverpool
L3 9AF

DX: 745810 Liverpool 35

Phone: 0151 235 6750

Email:Liverpool.NCT@legalaid.gsi.gov.uk

Further guidance

There may be some confusion about financial eligibility in relation to CRM1’s CRM2’s and CRM3’s which we wish to clear up with the publication of Keycard 45A.

Providers have fed back to us that there may be some confusion around the rules governing financial eligibility for legal help in relation to CRM5’s, particularly in relation to the dependants deductions. We want to remind providers that the rules governing eligibility are set out within keycard 45A (as amended) valid from 7 April 2008, which confirms fixed rate allowances for dependants are weekly deductions.

Criminal Keycard 45A

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