Failure to advise on legal aid eligibility may amount to negligence, even where a firm does not carry out legal aid work, and a client’s potential eligibility for legal aid must be considered at the outset of the case. In David Truex Solicitor (a firm) v Kitchin, the court found, in relation to costs, that the client had not been advised about the availability of legal aid at the earliest opportunity. It was emphasised that a solicitor must consider eligibility at the outset. The client was entitled to claim back all monies paid to the solicitors in fees, save for a small sum paid for the initial conference. See Practice Note: Taking initial instructions from family clients.

Practitioners must consider and take account of their client’s attributes, needs and circumstances. For further guidance, see Practice Note: The Solicitors Regulation Authority (SRA) regime for family lawyers.

Legal aid is only available in very limited circumstances for family cases, largely where there is domestic abuse (with limitations) and in public children cases (again, with some limitations), as a result of the reforms