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Civil news: merits criteria regulations amended from 22 July

Merits criteria amended for applications with borderline or less than 50% prospects of success.


The Ministry of Justice has laid regulations amending the Civil Legal Aid (Merits Criteria) Regulations 2013.

These changes come into force on 22 July 2016 with transitional provisions in place for applications made before this date.

What has been changed?

The new criteria apply to all applications for civil legal aid that have to meet a ‘prospects of success’ test to receive legal aid. They do not apply to any other application e.g. Special Children Act cases.

The criteria for cases with prospects of success that are 50% or more or where the prospects are ‘unclear’ have not changed.

The prospects of success for all other relevant cases must now be classified as one of the following:

  • ‘Marginal’, where there is more than a 45% chance of obtaining a successful outcome but less than 50%
  • ‘Borderline’, which means that it is not possible because of disputed law, fact, or expert evidence to decide that the chance of obtaining a successful outcome is 50% or more or to classify the prospects as marginal or poor
  • ‘Poor’, where there is less than a 45% chance of obtaining a successful outcome

The ‘prospects of success’ test will not be met in cases where the chance of obtaining a successful outcome is poor.

Where prospects are classified as marginal or borderline the test will still be met in some circumstances where the:

  • case is of significant wider public interest
  • case is one with overwhelming importance to the individual; or, in certain proceedings, the
  • substance of the case relates to a breach of Convention rights (this is only available in certain cases – e.g. judicial review)

There are some marginal or borderline cases where it will not be necessary to demonstrate the additional criteria listed above. Instead, the case will automatically meet the ‘prospects of success’ test just because the prospects are marginal or borderline.

An example of this is a housing possession case. You can read the regulations below for full details of the test applicable to each type of application.

Are there any transitional arrangements?

These changes only apply to applications made on or after 22 July 2016. Applications made before that date will be determined on the basis of the previous criteria.

Full details of the transitional arrangements can be found at paragraph 3 of the Civil Legal Aid (Merits Criteria) (Amendment) Regulations 2016. Follow the link below to these regulations for further information.

Are any other changes being made?

In July 2015, the Director of Legal Aid Casework removed delegated functions for cases with prospects of success that were borderline or below 50%. These will now be reinstated on 22 July 2016 to the same extent as they were before.

This means that immigration providers can now determine all applications for Controlled Legal Representation under the new criteria.

It also means that all providers will have the power to self-grant emergency representation on the basis of the new criteria. This is subject to the usual controls on this type of funding.

Further information

The Civil Legal Aid (Merits Criteria) (Amendment) Regulations 2016

Published 21 July 2016