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Means testing

For means-tested matters, the relevant part of the Legal Aid form needs to be completed fully.

Tribunal matters (i.e. where the client applies to the tribunal) are non-means-tested. Appeals against DOLS under s21A MCA 2005 are also non-means-tested while the DOLS authorisation remains in force or is extended by the court (UF v A Local Authority [2013] EWHC 4289 (COP), [2013] MHLO 105).

Most non-Tribunal matters are means-tested, but some are non-means-tested. One interpretation of the regulations is that means-testing does not apply to any matters where advice about the Tribunal and possible applications and timing of such is provided to a client who is subject to the MHA. However, it would be wise (and usually not difficult) to follow the April 2014 LAA guidance which states that the following conditions must be met:

1. The client must be eligible to apply to the MHT (or the representative could not have reasonably discovered either before or during the first attendance that the client was ineligible to apply).
2. The advice given must satisfy the sufficient benefit test.
3. “There must be a reasonable expectation on behalf of both the client and provider to pursue an application to the MHT (notwithstanding where a client subsequently changes their mind and decide not to apply).” The footnote gives these examples: (a) decision to apply to MHT made at initial attendance (OK); (b) client says to provider ‘I want a tribunal’, ‘I want to get out of hospital’ or ‘I am thinking about a tribunal application but want to discuss it’ (OK); (c) client says to provider ‘I want to get out of hospital but I don’t want a tribunal’ (not OK).
4. The reasons for not means testing must be stated on file, for example if the representative advises the client not to proceed.
5. Where the client has capacity to do so, he must have instructed the representative to give Tribunal advice.

In means-tested cases, if the client is on a ‘passported’ welfare benefit (e.g. Income Support) then the ‘income’ part of the form can be left blank, but the capital part must be filled in fully. The Legal Aid Agency, 'Keycard 55' (April 2019) is helpful when completing the form. There is also an online calculator on the Justice.gov.uk website.

No independent evidence of capital eligibility is required, unless you have some reason not to believe what the client tells you. If you believe that the potential client’s apparent ineligibility is delusional then you may wish to look into this also.

For income, evidence of means must be sought, as outlined in the LAA’s April 2014 guidance. The Legal Aid form itself provides guidance on steps to take if the patient does not have evidence to hand (although the LAA take a stricter view than this in practice):

If no, please record justification or exceptional circumstance. In relation to clients detained under the Mental Health Act, you are required to attempt to obtain oral or written confirmation of the position (e.g. type of benefit received) from the ward manager or social worker where practicable.

You can also write to the hospital’s Mental Health Act/Patient Affairs office or the Benefits Agency, or rely on social circumstances reports which specify which benefit is received. The evidence should relate to the month preceding the client’s signature and should state which benefit the client receives.

Further details are available on the Government website at https://www.gov.uk/civil-legal-aid-means-testing and, in particular, in chapter 12 of Legal Aid Agency, ‘Guide to Determining Financial Eligibility for Controlled Work and Family Mediation’ (v1, April 2015).