When to Lodge the Application
It is in your client's interests to send us the completed application at the earliest opportunity. This is so even if the client is better off than the average applicant, and may not be expected to qualify for aid initially. The reasons for this are that:
- if they are eligible, aid can only start from the date we receive the application
- even if your client is initially ineligible on means, an early application gives them the opportunity to have their contribution assessed at the outset so they know when to re-apply.
When an application for legal aid is granted, funding will generally be granted with aid effective from the date the application for aid was received by the Commission. Applications for aid should therefore be submitted to the Commission as soon as they have been completed. Work undertaken prior to that date will not usually attract funding from the Commission.
Clients often assume that aid commences when they sign the application form. This assumption is incorrect. It is the responsibility of the practitioner to inform the client that this is incorrect and that funding will not cover work done prior to the grant of aid being made.
In very rare circumstances, a retrospective grant of aid may be made. An application for retrospective aid is assessed on a case by case basis.
For example, a retrospective grant of aid may be made where the practitioner has received or completed an unsigned application for aid on behalf of a client. This would most usually occur where, due to the tyranny of distance, the practitioner is taking instructions and appearing for the client by way of phone or video link up. The application for aid must still satisfy the means, merits and guidelines tests and the practitioner must confirm that he or she has properly advised the applicant of the requirement to provide true and correct information and that the applicant has agreed to be bound by the information provided.
Another example may be where the practitioner has submitted an urgent bail application form to the Commission for the client but has also assisted the client with a guilty plea, perhaps because of indication from the bench as to penalty (such as time served). The practitioner will have considered it to be in the client’s best interest to proceed immediately by way of guilty plea rather than seeking a further remand despite the fact that approval from the Commission had not yet been sought. In these circumstances a retrospective grant of aid for a guilty plea will be favourably considered upon receipt of the Legal Aid Application form.
If your client is not initially eligible for reasons of means, we will assess a contribution which we consider he or she could pay, and suggest that he or she re-apply for aid if the case costs more.
This re-application must be made immediately the contribution is spent, as once again, we will only pay for work we have authorised. If the client expends their contribution, but does not reapply, we cannot help them with your fees in excess of the contribution. This means that they will have to pay privately, when they might have had legal aid. This is a frequent source of client complaint. Our letter to you and your client tells you how much this contribution is. It is your responsibility to keep track of your fees and let us and your client know as soon as the contribution is spent so that we can review the case and see whether they are now entitled to aid.
Of course, there is no guarantee that aid will be granted on the re-application. We consider the client's eligibility at that time, having regard to the amount they have paid and all other relevant factors.