Legal Aid Eligibility

Merits Test

The below is taken from section 15 of the Legal Aid Ordinance 2020.

(1) When determining whether it is in the interests of justice to grant, vary or terminate legal aid, the Administrator or court must consider the nature of the legal services the person needs, including whether —

(a) in relation to criminal proceedings —

(i) the person has been or is likely to be charged with an offence for which the court is likely to impose a sentence of imprisonment;

(ii) the person has been or is likely to be charged with an offence of such a nature that the investigation or trial of the offence, or the sentence which the court may impose for the offence, could seriously damage the person’s reputation or livelihood;

(iii) the person has been or is likely to be charged with an offence, and the legal services the person needs include tracing and interviewing witnesses, obtaining expert evidence and reports, or conducting the examination of witnesses; or

(iv) the person has been or is likely to be charged with an offence and legal representation is likely to improve the quality of evidence given by a witness in the proceedings having regard to the current or a past relationship between the witness and the person, the person’s behaviour generally in relation to the witness since the proceedings commenced and the nature of the questions the witness is likely to be asked;

...

(c) in the course of the proceedings in which the person is concerned, —

(i) a constitutional issue or other substantial question of law is likely to be raised; or

(ii) a matter of public interest is likely to be raised; or

(d) the particular characteristics of the person (including, but without limitation, the person’s age, state of physical or mental health, any physical or mental disability, or understanding of and ability to communicate in English) may affect the person’s ability to protect their own interests or represent themselves in criminal or civil proceedings.

Financial Eligibility ('Means Test')

here are 2 parts to calculating your financial eligibilty;

1) Capital Assets; and

2) Relevant Annual Income

Capital Assets

If your relevant capital exceeds £10,500 you will not be eligible for a criminal representation certificate.

Relevant capital means any assets in the Falkland Islands and elsewhere of the applicant and the applicant's spouse including -

(a) all savings, shares and other investments;

(b) cash or other items of value but disregarding any single item of which the value is less than £1,000;

(d) property but disregarding the value of the equity in the applicant’s principal private dwelling up to a value of £200,000.

(regulation 9, Legal Aid Regulations 2020)

Relevant Annual Income

If your relevant annual income is £18,501 or more you are not eligible for a criminal representation certificate.

To calculate your relevent annual income the legal aid administrator will have regard to regulation 10 of the Legal Aid Regulations 2020 which provides the following:

(2) Subject to subregulation (3), an applicant’s relevant annual income is the gross annual income of the applicant and the applicant’s spouse after deduction of allowable housing costs and any allowance for family members.

(3) When calculating the relevant income —

(a) welfare allowances are disregarded; and

(b) if the applicant and the applicant’s spouse are or are likely to be opposing parties in any civil proceedings, the gross income of the applicant’s spouse is disregarded and the allowance for family members does not include an allowance for the applicant’s spouse.

(4) In this regulation —

“allowance for family members” means —

(a) except in the circumstances mentioned in subregulation (3)(b), an allowance of £2,600 per annum for the applicant’s spouse;

(b) an allowance for each child living with the applicant as a member of the applicant’s family —

(i) £1,100 per annum for the first child; and

(ii) £550 per annum for each subsequent child.

(c) an allowance for any other child of the applicant, whichever is the less of —

(i) a sum equivalent to the sum paid towards the child’s maintenance annually, whether under a court order or otherwise;

(ii) if no allowance is made under paragraph (b), £1,100 per annum for the first child or, if such allowance is made, £550 for the first child and in either case £550 per annum for each subsequent child;

but allowance shall not be made under paragraphs (b) and (c) for more than five children in total or £3,300 per annum;

“allowable housing costs” means the total annual payments up to £11,000 per year made under—

(a) a mortgage or tenancy agreement relating to the applicant’s principal place of residence;

(b) any other agreement evidenced in writing under which the applicant resides with another person, not including any contribution to the household budget for heating, lighting, water rates and food; and

“child” means any person under the age of 16 years or, if in full-time education or training, under 18 years.

Scale of Financial Eligibility & Required Contribution

Below is the table of eligibility, which can be found in the Legal Aid Regulations. Once your relevant capital and annual income are calculated, the legal aid administrator wil apply the below table in assessing if you are eligible, and if you are required to pay a contribution towards the legal services provided

Applicant's Relevant Annual Income	Applicant's Contribution to Legal Practitioner's Fee
Applicant in receipt of welfare allowances	Nil
Less than £10,500	Nil
£10,500 - £13,000	10% of the Legal Practitioner's fee, up to a maximum contribution of £750
£13,001 - £16,000	25% of the Legal Practitioner's fee, up to a maximum contribution of £1,500
£16,001 to £18,500	40% of the Legal Practitioner's fee, up to a maximum contribution of £1,500
£18,501 or more	Applicant is not eligible for means tested legal aid

You will note that the application forms ask for more information that is ordinarily required to assess eligibility for legal aid. This is because the Legal Aid Administrator retains a discretion to grant legal aid to individuals where it is in the interests of justice to do so. This discretion also extends to circumstances in which the contribution may be reduced or waived. There is no requirement for the applicant to provide any information beyond what is required for the purpose of calculating their relevant capital and annual income.

You must ensure that all information provided in connection with your application is true, accurate and complete in all material aspects. The Legal Aid Administrator may take into account any failure to comply with requests for information when considering whether it is in the interests of justice to grant, vary or terminate legal aid.

Data Retention

Legal Aid records, including applications and financial information, are stored by the court in line with Falkland Islands Government Financial Information Retention Schedules.

The legal aid administrator, or a person who carries out duties under the authority of the administrator, may not give or provide any information acquired under the Legal Aid Ordinance except:

(a) in the course of carrying out the person’s duties for or in connection with the administration of the Legal Aid Ordinance;

(b) with the authority of the applicant or assisted person, as the case may be;

(d) in accordance with a court order.