(This note is not part of the Regulations)
These Regulations amend the Civil Legal Aid (Merits Criteria) Regulations 2013 (S.I. 2013/104) (“the Merits Criteria Regulations”), which make provision for the criteria which the Director of Legal Aid Casework (“the Director”) must apply when determining whether an individual or legal person qualifies for civil legal services under Part 1 of the Legal Aid, Sentencing and Punishment of Offenders Act 2012 (c. 10) (“the Act”).
Regulation 2(3) to (7) and (9) to (10) and (12) amends the merits criteria which the Director must apply in relation to determinations for legal representation in certain cases. Where an application for civil legal services is subject to an assessment of its prospects of success, it will no longer fulfil the merits criteria if the case is assessed as having a “borderline” prospect of success. Consequently, borderline cases will be ineligible for legal aid. “Borderline” is defined in regulation 5(1)(d) of the Merits Criteria Regulations.
Regulation 2(8) makes an amendment to the Merits Criteria Regulations to ensure that a prospects of success test applies to cases falling within paragraph 15 of Part 1 of Schedule 1 to the Act. Regulation 2(2) amends the definition of “private law children case” in the Merits Criteria Regulations to include reference to specific types of case falling within paragraph 15. The consequence of this is that those cases will be subject to the merits criteria detailed in regulation 68 of the Merits Criteria Regulations. Regulation 2(11) amends the merits criteria which the Director must apply in certain family cases to include reference to matters described in paragraph 15 of Schedule 1 to the Act to the extent that regulations 64 and 68 do not apply. This amendment ensures that the prospects of success test applies to the types of paragraph 15 case that do not fall within the definition of “private law children case”.
Regulation 3 provides that the amendments made by regulation 2 do not apply to pre-commencement applications for civil legal services. Regulations 4 to 6 define a “pre-commencement application”.
A full impact assessment of the effect of the policy implemented by this instrument on the costs of business and the voluntary sector was produced with the Government’s response to consultation, Transforming Legal Aid: Next Steps, and is available at https://consult.justice.gov.uk/.