Guidance: Criminal legal aid: means-testing

Determine financial eligibility for legal aid: check household income, calculate living costs, enforcement action, apply for hardship or eligibility review.

Overview

This page covers means-testing for representation in criminal proceedings. For means-testing delegated to providers (Advice and Assistance and Advocacy Assistance) go to further information at the bottom of this page, which includes Keycard 45. You may also refer to the Criminal Bills Assessment Manual and Standard Crime Contract 2017.

The means test is one aspect of determining if someone qualifies for legal aid to cover some or all of their defence costs. It takes into account:

  • income
  • family circumstances, such as the number of children
  • essential living costs, such as mortgage or rent

Eligibility also depends on the type of case and where it’s heard.

Applicants must also pass the Interests of Justice test (IoJ). Applicants under 18 automatically pass the IoJ test, as do applicants applying in relation to:

  • cases committed, sent or transferred to Crown Court for trial
  • voluntary bills of indictment
  • retrials
  • committals for sentence

Applicants who fail the means test can apply for a review on the grounds of hardship. This will consider any expenditure that we have not yet taken into account and the likely costs of the case.

Passporting

Applicants will passport the means test to automatically get free legal aid if they’re under 18 or receive:

  • Income Support (IS)
  • income-based Jobseeker’s Allowance (JSA)
  • Universal Credit (UC)
  • State Pension Guarantee Credit
  • income-based Employment and Support Allowance (ESA)

They must also pass the IoJ test. As shown above, some applicants will automatically pass this.

If you or your client receives one of the passporting benefits, they need to provide their National Insurance number (unless you or your client has been remanded into custody by the court). When completing the CRM14 eForm, a ‘real-time’ link to the DWP benefits checker confirms the Passported Benefit status within a few moments.

If you or your client has missed their benefits sign-on date, it’s possible to search over a longer period. You need to enter their sign-on date in the ‘When did you last sign on?’ field.

Initial means test

You need to work out the applicant’s gross annual income and family circumstances. Gross annual income is weighted to account for the number and ages of family members. The resulting value is known as ‘adjusted annual income’.

Use this formula: gross annual income divided by weighting equals adjusted annual income.

Calculate gross annual income

Take the client’s gross income (before tax and National Insurance deductions) and, if they have a partner, add their partner’s gross income.

The means test includes income from employment and/or self-employment, as well as income from:

  • relatives and friends
  • pension
  • property (including rent from lodgers)
  • student loan payments
  • interest from savings
  • maintenance received from former partners

You also need to include any benefits that aren’t listed above as passporting benefits or included in the Criminal Legal Aid Manual as disregarded benefits, for example:

  • Child Benefit
  • Tax Credits
  • Incapacity Benefit
  • Industrial Injuries payments
  • Disablement Benefit
  • Savings Pension Credit
  • contribution-based JSA

See Annex S of the Criminal Legal Aid Manual or contact the Criminal applications helpline for more information.

Calculate weighting

  • Single adult: 1.00 + any children
  • Couple: 1.64 + any children
  • Each child: based on their age at their next birthday (see table)
Age of child (next birthday)Weighting
0-10.15
2-40.30
5-70.34
8-100.38
11-120.41
13-150.44
16-180.59

How the results work depending on case type

Adjusted incomeMagistrates’ courtCommittal for sentenceAppeal to the Crown CourtCrown court trial
£12,475 or lessfundedfundedfundedfunded, no income contribution
More than £12,475, less than £22,325depends on the full means testdepends on full means testpossible fee depends on the full means test and outcome of the appealpossible income contribution depends on the full means test
£22,325 or morenot fundednot fundeddepends on the full means test and outcome of the appealpossibly not funded* or possible income contribution, depends on the full means test

*For Crown Court trials, applicants with a household disposable income of £37,500 or more are ineligible.

Example

An applicant for legal aid has a gross income of £20,800 and his partners are £11,000. They have a child aged 9 next birthday, a child aged 5 next birthday and a child aged 2 next birthday.

The applicant’s adjusted income is calculated as follows:

Applicant and familyWeighting value
Applicant1.0
Partner0.64
Child 10.38
Child 20.34
Child 30.30

The total weighting factor is 2.66.

The total income received in this family is £31,800. Divide this figure by 2.66 to get £11,955, so the applicant passes the initial means test and gets funding.

Full means-testing

Use the full means test if the adjusted annual income was found to be more than £12,475 and less than £22,325.

The full means test works out your client’s ‘disposable income’. It’s calculated by deducting living costs from the client’s gross annual income. The adjusted income from the initial means test is not valid for the full means test.

The client’s living costs include:

  • tax and National Insurance
  • annual housing costs
  • annual childcare costs
  • annual maintenance to former partners and any children
  • an adjusted annual living allowance

Calculate the adjusted living allowance

For a single person, the allowance is £5,676. This covers an average person’s essential spending on items like food, clothing and fuel.

The allowance is weighted to take account of the size of an applicant’s family – using the same weighting values as above. The resulting value is known as the ‘adjusted living allowance’.

How the results work

Adjusted incomeMagistrates’ courtCommittal for sentenceAppeal to the Crown CourtCrown Court trial
£3,398 or lessfundedfundedfundedno income contribution
more than £3,398not fundednot fundedpossible funding depends on the outcome of the appealeligible with income contribution if the disposable income is less than £37,500

Example

An applicant and his partner have a gross annual income of £49,500 and 2 children aged 12 next birthday and 1 next birthday.

The applicant’s adjusted allowance is calculated as follows:

Applicant and familyWeighting value
Applicant1
Partner0.64
Child 10.15
Child 20.41

The weighting factor is 2.20.

So their weighted annual living allowance cost is £12,487 (£5,676 x 2.2).

They also have rent, childcare, tax and National Insurance costs of £28,340. This is deducted from their gross annual income (£43,500), leaving a disposable income of £2,673. This applicant qualifies for legal aid.

Complex means

A small number of applicants may have complex financial circumstances. For example, if they’re:

  • self-employed
  • in a business partnership
  • a company director
  • in the armed forces
  • subject to a restraint or freezing order

They’re still means-tested and such cases will be processed by the National Crime Team (NCT).

For details on how complex means are assessed refer to the Criminal Legal Aid Manual.

Means testing and eligibility forms

You must give the client’s means of information in the application for legal aid.

Apply online using the CRM14 eForm.

See the Crime eForm page for further information.

You may also need to access CRM16 – application for review on the grounds of hardship (see below).

Please note the CRM16 form for hardship or eligibility reviews is a paper form and should be submitted as follows:

If you are submitting a CRM16 as part of a New Applications Following Ineligibility, or your client is applying for the first time and wishes to submit a CRM16 at the same time, you should upload the CRM16 as evidence to the CRM14 eForm. Please make a note in the further information field of the CRM14 that a CRM16 is attached.

In all other circumstances, you must post the paper CRM16 form to your nearest National Crime Team.

Making contributions in the Crown Court

For Crown Court trials there are two types of contribution a defendant may have to make – either from income and/or capital.

They may have to pay all, some or none of their defence costs, depending on what the means test decides they can afford from their income and capital assets.

The following flyer explains the responsibilities of those in receipt of legal aid, as well as those of the LAA and its collection and enforcement agencies, and may assist clients:

Important information about legal aid – flyer (PDF, 545KB, 2 pages)

For Crown Court trials, clients who fail the means assessment as their annual household disposable income is above the £3,398 threshold (but below the £37,500 eligibility threshold) will be asked to make a contribution from income. Income contributions are set at 90% of disposable income and will be for a maximum of 6 months. For applicants who have a higher disposable income than their likely case costs, contributions will be limited to a maximum income contribution to reduce the risk of overpayment.

At the end of the case, if the defendant is found not guilty they will get all their money back with interest at a rate of 2%.

For Appeals to Crown Court, clients who fail the means assessment, and then abandon, or are unsuccessful in, their appeal will have to pay towards the cost of the appeal as follows:

  • £500 for an appeal against conviction abandoned or dismissed
  • £250 for an appeal against conviction dismissed but the sentence is reduced
  • £250 for an appeal against sentence or order abandoned or dismissed

Where payment is required, clients will be contacted after the outcome of the appeal.

Enforcement action

If your client fails to make payments after they’ve received contribution orders, they’ll face enforcement action.

Where payment is not made or a payment arrangement is not maintained, the LAA continues to instruct the Debt Recovery Company to enforce unpaid contributions.

If payment is not made interest will be charged at 6% – enforcement action may follow.

The costs of any action will be added to the amount clients owe.

Enforcement options include but are not limited to:

  • charging order secured against any property owned
  • 8% interest in charging orders
  • third party debt order against any money deposited in an account
  • attachment of earnings order, where payment can be deducted at source
  • High Court enforcement, via a writ of Fi Fa
  • distress warrants, where goods can be seized, removed and sold
  • order to clamp and/or sell any vehicle owned

See the Motor vehicle order scheme guidance (PDF, 215KB, 19 pages) for practical guidance on what to do if you are subject to an application for a clamping order or vehicle sale order and wish to contest the application. This guidance may also be relevant to any other person who shares ownership of the vehicle or who relies on the vehicle for transport.

Money recovered will be returned to the legal aid fund.

Exceptional circumstances: hardship and eligibility reviews

Magistrates’ court hardship application

Applicants who fail the means test (or are likely to fail) can apply for a review on the grounds of hardship. This will consider any expenditure that we have not yet taken into account. You may also estimate the likely costs of their case.

NCT will assess whether additional expenditure takes your client’s disposable income below £3,398. They will also deduct the likely costs estimate (where provided).

Crown Court eligibility review

Applicants assessed to have the disposable income of £37,500 or more can apply for an eligibility review. This will consider any expenditure that we have not yet taken into account.

You should also estimate the likely private costs of their case.

NCT will assess whether the estimated private legal fees, alone or together with extra expenditure, take your client’s disposable income below £37,500.

If the application is successful, NCT will calculate whether they’re liable for any income contribution towards costs.

Crown Court hardship application

Applicants who have been granted a Crown Court representation order but asked to make monthly contributions from their income (or are likely to be granted legal aid with an income contribution) may want additional expenditure to be considered. They need to make a Crown Court hardship application.

A revised contribution order will be issued if your client’s disposable income is reduced. If it’s £3,398 or less, the contribution order will be revoked.

How to apply for a hardship or eligibility review

The applicant can seek a hardship review at the same time as their initial legal aid application or afterwards. They must complete a CRM16 hardship application form.

Please note the CRM16 form for hardship or eligibility reviews is a paper form. It should be submitted as follows:

If you are submitting a CRM16 as part of a New Applications Following Ineligibility, or your client is applying for the first time and wishes to submit a CRM16 at the same time, you should upload the CRM16 as evidence to the CRM14 eForm. Please make a note in the further information field of the CRM14 that a CRM16 is attached.

In all other circumstances, you must post the paper CRM16 form to your nearest National Crime Team.

Full details of the eligibility review and the hardship review can be found in section 15 of the Criminal Legal Aid Manual.