Removal of mortgage cap means more individuals could be eligible for legal aid

A blog by Blue Stephenson, Trainee Solicitor in the Family department at Pepperells Solicitors.

Recent legislation which came into effect on 28th January 2021 has removed the existing cap on the amount of mortgage debt that can be deducted from a property’s value when considering a client’s capital for the purposes of assessing eligibility for legal aid.

Given the recent change in legislation we thought it an opportune time to consider again a client’s eligibility for legal aid in private family law cases.

The difficulties in obtaining legal aid for a private family law case following the introduction of the Legal Aid, Sentencing and Punishment of Offenders Act 2012 are well documented.

To qualify for legal aid in a private family law case, the correct test to be satisfied depends upon whether the case is for an injunction (usually a Non-Molestation or Occupation Order(s)) or for a private law case related to children, divorce and/or financial separation.

Domestic Abuse Cases

For cases where you are seeking advice in obtaining a Non-Molestation Order or an Occupation Order due to ongoing domestic abuse, you will need to be financially eligible to receive legal aid and your case will need to have merit.

Other Private Law Cases

For other private law cases, clients must satisfy a bipartite test; this being: (1) be able to evidence domestic abuse or child abuse https://assets.publishing.serv… and (2) satisfy the financial eligibility test.

Merits

For your case to have merit, the test to apply is that a reasonable private paying client would pay for the services sought by the client. If the solicitor or legal aid agency do not consider that your case has merit, then you may fail this limb of the test.

Financial Eligibility (Means)

Means can be sub-categorised in to two sections: income and capital.

If you are able to provide evidence that you are in receipt directly or indirectly of a passporting benefit, you will automatically pass the income section of the means test but your capital will still need to be assessed.

The accepted passporting benefits are as follows:

• Universal Credit;
• Income-based Job Seeker’s Allowance;
• Income Support;
• Income-based Employment and Support Allowance; or
• Guarantee Pension Credit

If you are not in receipt of one of these benefits, then your monthly income and expenditure will have to be assessed more carefully. For this purpose, your net monthly disposable income, after provision for any allowable disregards, must not exceed £733.00 (this is the current figure but may be subject to change in the future).

In respect of your capital, this must not exceed £8,000 in total (this is the current threshold). However, if you own your own home (whether solely or in joint names with another person) there is currently an equity disregard of £100,000 meaning that only equity that is over and above £100,000 for your share of the property will be counted for the purposes of the capital threshold.

Prior to 28th January 2021, there was a further disregard capped at £100,000 in respect of any mortgage secured on your main home. The recent change has removed the existing cap on the amount of mortgage debt that can be deducted from a property’s value, so that all mortgage debt will be deducted.

The practical effect of this change is that some clients who were previously ineligible for legal aid due to exceeding the capital threshold (owing to the calculation of available equity in the property) may now be brought into scope.

This significant change in the law is most welcomed and means that more individuals, provided that they meet all limbs of the test, will be able to receive assistance through legal aid.

If you require legal assistance and think that you may be eligible for legal aid, please contact one of our offices to set up an appointment with a member of our family team.