We have changed our approach to assessing merits in civil legal aid to take account of the Court of Appeal judgment in The Director of Legal Aid Casework (DLAC) and Lord Chancellor v IS.
Under the current merits criteria most cases need to pass a ‘prospects of success test’ before legal aid can be made available.
The merits criteria state that the prospects of success test is met in cases with ‘poor’ prospects or ‘borderline’ cases where:
funding is necessary to prevent a breach of a client’s rights under the European Convention on Human Rights, or any rights of a client to the provision of civil legal aid or services that are enforceable under EU law or
DLAC considers it appropriate to find that the test is met having regard to any risk of such a breach
What has been changed?
The Court of Appeal found that it is lawful for the prospects of success test to have a 50% threshold, and this does not breach a client’s rights. As a result, we are now no longer funding any applications for civil legal aid that are subject to a prospects of success test where the prospects are assessed as poor or borderline.
We have also reinstated delegated functions to allow providers to refuse legal aid in cases that they assess as having poor or borderline prospects. This allows Immigration providers to refuse applications for controlled legal representation in these matters without having to revert to us first.
The Ministry of Justice is currently considering what steps to take following the Court of Appeal’s findings. We will provide you with further information on any further changes in due course.