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Legal aid can be very confusing. I hope to shed some light on what might be available to you here. As soon as you find out that doctors or social services have concerns, you should contact a solicitor. They will be able to discuss public funding with you.
There are several types of legal aid; here I will be outlining public law related legal aid, from the local authority notifying you of their intention to issue proceedings through to appeals.
If the local authority provide you with a ‘letter before proceedings’, sometimes called a PLO letter or pre-proceedings letter, as a parent with parental responsibility you are entitled to a form of legal aid called Legal Help Level 2. This is a low form of funding which permits a solicitor to advise you and engage in correspondence and negotiations with the local authority. It also allows a solicitor to attend the pre-proceedings meeting.
Once care proceedings are issued, if you are a respondent in those proceedings and you have parental responsibility (e.g. a parent), you are entitled to non-means assessed legal aid. This means that regardless of your income – rich or poor – you are eligible. Further, this legal aid is non-merits assessed which means that your prospects of success are not considered (your case could be strong or could be hopeless, you will still be eligible). In short, legal aid is automatic.
It is not the same, however, if you are a respondent or intervener without parental responsibility (such as a grandparent caring for the child or a boyfriend accused of causing harm). Here, your legal aid will be subject to a means and merits assessment. This means that the Legal Aid Agency will consider your income and your prospects of success. Legal aid is therefore not guaranteed. If legal aid is granted, it will be subject to review so if your circumstances change (whether that be financially or your prospects of success) your legal aid could be withdrawn. Both you and your solicitor have a duty to keep the Legal Aid Agency updated.
Most applications outside of care proceedings are also means and merits assessed. This could include an application to appeal a fact find, an application to discharge a care order, an application to reopen a fact find, etc. Again, this means that your income will be considered along with your prospects of success. Legal aid is therefore not guaranteed; further, it can be very difficult to obtain. If your prospects of success (in the view of a lawyer) are low (or less than reasonable) it is unlikely that you will be granted legal aid. Often it is necessary to obtain written advice from a barrister to outline the prospects of success and demonstrate to the Legal Aid Agency why legal aid should be granted. As with all means and merits assessed legal aid, it will be subject to review and if your circumstances change it may be withdrawn.
The Legal Aid Agency have an ‘eligibility calculator’ on its website where you can enter your income and outgoings and it will indicate what type of legal aid, if any, you are entitled to and whether you have to pay any contribution towards it. Please note that certain state benefits are ‘excluded’ therefore you do not need to include them in the assessment (such as income support or DLA, see the guidance on the LAA website). It can be found here:
So what happens if you have legal aid in place with one solicitor but want to change to another solicitor as you do not feel your case is being progressed as you would like?
Essentially, it is entirely up to you who you instruct; however, an application will need to be made to the Legal Aid Agency (LAA) to transfer your legal aid from one solicitor to another. The process is relatively straightforward and your ‘new’ solicitor will be able to explain it to you. The LAA ultimately make the decision. Generally, applications to transfer are accepted and dealt with quite swiftly but they may take issue with people that have changed solicitors many times before.