We have a contract with the Legal Aid Agency (LAA) to provide advice, assistance and representation under the mental health category which means advice, assistance and representation in relation to (most) cases under the Mental Health Act 1983 and Mental Capacity Act 2005.
To be eligible for legal aid, there are two issues:
1. The matter needs to be within "scope": this is LAA terminology for being within the range of matters that have legal aid available, e.g. conveyancing is not an issue anybody can obtain legal aid for.
2. A person needs to have sufficiently low income and capital to qualify for legal aid. Being in receipt of means-tested benefits (e.g. Income-based ESA/JSA) no longer automatically entitles a person to legal aid on its own: capital must now be considered as well following a rule change in 2013.
The vast majority of issues under the Mental Health Act 1983 and Mental Capacity Act 2005 are within the "scope"/range of matters legal aid covers. Legal aid is not available for the following matters regardless of a person's financial circumstances (this list is not exhaustive):
• Creation and registration of Lasting Powers of Attorney (both property & financial affairs and health & welfare);
• Court of Protection proceedings and/or applications concerning any aspect of a person's property & financial affairs and/or deputyship;
• Advice, assistance and creation of an advanced decision.
There is a two part process to assess whether a person is eligible for legal aid although if a person has a partner, their finances are added to the legal aid calculations too:
1. Capital: A person is not eligible for legal aid if their capital (or joint capital) is deemed to be £8,000 or more. Please note that capital for legal aid purposes can include some of the equity in a person's property and valuable possessions as well as savings and investments. If a person has less than £8,000 in capital, their income is then assessed.
2. Income: If a person is in receipt of a means-tested benefit, they will pass the income part of the eligibility test. If a person is in receipt of any other welfare benefit or has a job, this will need to be assessed in accordance with Legal Aid Agency guidelines.
Click here for a useful link where a person can check if they are potentially eligible for legal aid.
Please note that we will also have to carry out our own legal aid financial eligibility assessment to assess whether a person is eligible for legal aid. We will usually ask for copies of a person's bank statements and copies of any DWP letters and/or wage slips as a minimum.