Page 8 - Community Living Magazine 34-2

legal: funding a case
Legal aid: what it covers valuation of your savings. This stops many
Your home counts towards the

and who can get it people from qualifying, as only the first
£100,000 of the equity and a £100,000
mortgage are ignored against the valuation.
Some people can access non means-
tested legal aid. This is available where the
The rules for getting government help with legal expenses have dispute concerns section 21a proceedings,
become increasingly complex, but it is still available for some which are challenges to Deprivation of
cases, explain Belinda Schwehr and Kaylee Lindsey Liberty Safeguards authorisations – on any
footing. However, the court of protection
does not have the powers of the
administrative court with respect to
egal aid has hit the headlines again If there is a dispute about whether declaring care packages to be unlawful.
recently, with journalists often someone has capacity to consent to There are three types of legal aid and
Ljumping on the “profiteering fat cat decisions about their care and support these are best thought of as stages.
lawyers” bandwagon. (particularly in relation to deprivation of
This is far from the reality in community liberty) or whether an existing or Stage 1. Legal help
care, education, housing, mental health proposed package is in a person’s best The legal aid provider completes a form
and public law matters. The advice sector interests, court of protection proceedings with the person and collects evidence of
in these areas has survived only because may be necessary. their financial circumstances for the
of the willingness of legal aid lawyers to means test.
go above and beyond the call of duty, The criteria for whether a provider
effectively donating thousands of hours of Non means-tested legal aid is should take on the case are vague. For
labour to prop up a failing system. available for challenges to legal help, they are simply that:
Law firms, law centres and some ● A person has an issue within the scope
charities hold Legal Aid Agency contracts Deprivation of Liberty of the relevant legal aid contract and
to provide publicly funded advice and Safeguards authorisations ● It is appropriate, having thought about
representation regarding decisions made the circumstances of the issues, to
by public bodies such as the NHS or a provide early legal advice.
local authority. If you cannot afford to pay for legal An important point is that this includes
A person experiencing a care package services, you need to find an organisation advice to establish if a case is not
cut or problem may need advice with a legal aid contract that can make an worth pursuing.
about a decision or action taken or a application for legal help or legal aid If practicable, the legal aid practitioner
failure to respond, and may need funding. Depending on the urgency of the can try to negotiate a better outcome with
legal representation. problem and the type of work needed, the public body or compose a complaint.
different processes are involved. If the public body has breached any of
Community care problems To qualify for either on the basis of its statutory duties, the practitioner can
Regarding community care, legal aid funding, you must pass a means test. The write a pre-action protocol letter. This sets
funding is designed to pay for advice and basic rules are that you must: out the person’s position and what the
representation where there has been a ● Be on an income-related “passporting” public body must do to resolve the
failure to assess needs, an inadequate benefit or have a gross income of less breach. The public body has 14 days to
needs assessment or care plan, a care than £2,657 per month respond unless the matter is urgent and
charging problem, a review-related issue ● Have disposable income of less than requires immediate action.
such as a cut to services, an unsuitable £733 per month (after allowances) If a public body does not respond by the
placement and so on. ● Hold savings under £8,000; if your deadline or sends a response that does
It also covers problems with savings exceed this, you are not even not resolve the breach, the practitioner
section 117 mental health aftercare entitled to preliminary advice. will need to consider whether there is
funding, NHS continuing healthcare If your savings are in the £3,000-£8,000, “merit” in making an application for
funding and services for looked-after and range, it is likely you will have judicial review. Legal help does not cover
disabled children. to pay a contribution towards certain preparation for such proceedings.
If issues cannot be resolved through types of legal work, although not for
correspondence, judicial review legal help. These contributions do not Stage 2. Investigative representation
proceedings in the administrative court need to be paid up front and can be This is for when investigative work
may be required. spread out. is needed to determine the prospects

Three stages of legal aid

Stage 1. Legal help Stage 2. Investigative representation Stage 3. Full representation
Provision of early legal advice, When investigation is needed to When judicial review is being
including on whether a case is determine the prospects of success in contemplated after all approaches to
worth pursuing judicial review proceedings resolving an issue have been exhausted

8 Vol 34 No 2 | Winter 2021 Community Living www.cl-initiatives.co.uk