Means Testing in Magistrates Court

Criminal legal aid in the Magistrates’ Court can be refused on either the “interests of justice” ground or due to the means test not being satisfied.

1. Where a representation order is refused due to the means test not being satisfied, the Legal Services Commission will pay the solicitor the Early Cover payment of £75 + Vat, Where the application was submitted within the requisite time period, namely 2 days or 5 days if the client is in custody. This is to cover any costs incurred in helping the client complete the means form.

If legal aid is refused on "interests of justice" grounds, the early cover payment of £75 is not payable.

2. Where the application fails on Interests of Justice grounds, pre-order cover (claim 2) has not changed. Solicitors are able to claim for up to one hours preparatory work, regardless of whether the means test is passed or failed. This is different to the early cover scheme where the fixed fee is only paid to those applicants who have satisfied the Interests of Justice but have failed the means test.

3. The Legal Services Commission will also allow a payment of £25 + Vat to the solicitor for helping the client fill in the form where Early Cover is not paid. This payment is for helping the client fill in the form is only payable when the £75 early cover payment is not paid and not in addition to it.

4. For clarification, the LSC has confirmed that barristers are not permitted to sign the “Application for Legal Aid in Criminal Proceedings” form (CDS14) as they are not under contract with the LSC.

These are matters that Clerks will wish to take into account when negotiating a fee for a first appearance.

We would recommend that all Clerks speak as soon as possible to all of their Instructing Solicitors to ascertain how they intend to operate the means test. It is critical that a reasonable fee is agreed in advance for every appearance in the Magistrates Court to ensure that the means test does not mean that junior barristers and pupils find they have to attend Court for nothing. We would welcome feedback as to how the means test is operating in practice.