Access to Justice and Funding of Legal Services for SQE1
The Legal System > Access to Justice and Funding of Legal Services
Access to justice is about whether people can actually use the legal system—and funding is a huge part of that equation. SQE1 tests your knowledge of legal aid, conditional fee arrangements, and the broader policy framework around access to legal services.
What Is Access to Justice?
Many SQE1 candidates incorrectly assume legal aid is available for all civil disputes—a mistake that costs marks when questions test the post-LASPO funding landscape. Access to justice means that individuals should be able to enforce their legal rights and resolve disputes through the legal system, regardless of their financial means. In practice, this depends on the availability of funding—whether through legal aid, private funding, insurance, or alternative fee arrangements.
The Legal Aid, Sentencing and Punishment of Offenders Act 2012 (LASPO) significantly reformed legal aid in England and Wales by removing many civil matters from the scope of publicly funded legal assistance. This reform reflects wider changes to the legal profession and regulation and the practical reality that clients need alternative ways to fund disputes, including conditional fee arrangements and damages-based agreements.
Key Principles for SQE1
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Legal aid: publicly funded legal assistance administered by the Legal Aid Agency (LAA); available for criminal cases (subject to means and interests of justice tests) and a limited range of civil cases (family cases involving domestic violence, immigration detention, housing possession).
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LASPO 2012: removed many civil matters from legal aid scope, including most private family disputes, personal injury, employment, and housing disrepair (subject to limited exceptions).
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Means test: applicants must demonstrate that their income and capital fall below specified thresholds.
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Merits test (civil): the case must have a reasonable prospect of success and be proportionate to the likely costs.
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Interests of justice test (criminal): considers factors such as whether the defendant faces a real risk of imprisonment, whether the case involves a substantial point of law, or whether the defendant is unable to understand proceedings.
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Conditional fee arrangements (CFAs): 'no win, no fee' agreements regulated by the Courts and Legal Services Act 1990 (as amended); the solicitor receives a success fee (now not recoverable from the losing party since LASPO).
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Damages-based agreements (DBAs): the solicitor receives a percentage of the damages recovered (capped at certain levels depending on the case type).
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Before-the-event (BTE) and after-the-event (ATE) insurance: BTE covers legal expenses as part of existing insurance; ATE is taken out after a dispute arises to cover potential adverse costs.
How This Appears in SQE1 Questions
This is one of the most commonly tested areas in SQE1. Questions on access to justice typically present a client's financial circumstances and ask you to identify the appropriate funding option. Traps include suggesting legal aid for a case type removed by LASPO (such as a standard personal injury claim) or confusing CFAs with DBAs. You should also know the difference between the means test and the merits test, and when each applies.
Quick Example Scenario
Sarah has a household income of £18,000 and wants to bring a negligence claim for personal injury after a road traffic accident. She asks whether legal aid is available.
Under LASPO, personal injury claims are generally excluded from the scope of civil legal aid. Sarah would need to consider alternative funding—most likely a conditional fee arrangement with her solicitor, possibly supported by after-the-event insurance to cover adverse costs if the claim fails.
Common Mistakes Students Make
- Assuming legal aid is available for all civil cases—LASPO removed many categories from scope.
- Confusing conditional fee arrangements (success fee based on base costs) with damages-based agreements (percentage of damages).
- Forgetting that the success fee in a CFA is no longer recoverable from the losing party since LASPO.
- Overlooking BTE insurance as a funding option—many clients already have legal expenses cover without realising it.
Quick Summary
- LASPO 2012 removed most civil cases from legal aid scope; legal aid remains only for criminal cases and limited civil (family with domestic violence, immigration detention, housing possession)
- Means test for legal aid: applicant's income and capital must fall below specified thresholds
- Merits test for civil legal aid: case must have reasonable prospect of success and be proportionate to likely costs
- Interests of justice test for criminal legal aid: considers risk of imprisonment, substantial point of law, defendant's ability to understand proceedings
- Conditional fee arrangements (CFAs): 'no win, no fee' agreements; success fee no longer recoverable from losing party since LASPO
- Damages-based agreements (DBAs): solicitor receives percentage of damages recovered (capped at 25% for PI cases, 50% for other civil cases)
- Before-the-event insurance covers legal costs as part of existing insurance; after-the-event insurance covers adverse costs risk if claim fails
Exam tip
A frequent mistake is suggesting legal aid for a case removed by LASPO (such as a standard personal injury claim). Also remember that success fees in CFAs are no longer recoverable from the losing party—this changed with LASPO.
Want to test this now? Try a few SQE1-style questions below before moving on.
Test Yourself
Test yourself
Quick check questions based on this article.
Question 1
Scenario
A solicitor is instructed by a client who wishes to bring a claim for race discrimination against his former employer. The client was dismissed from his position as a warehouse manager after making a complaint about racial harassment in the workplace. He wishes to pursue the claim in the employment tribunal. The client has limited financial resources - he earns £14,000 per year from a part-time job and has savings of £1,500. He asks the solicitor about the available funding options for the tribunal claim. The solicitor considers whether civil legal aid might be available for the discrimination claim. The solicitor is aware that most employment matters are outside the scope of legal aid but considers whether discrimination claims may be treated differently. The client also asks about alternative funding mechanisms, including whether a 'no win, no fee' agreement would be available. The solicitor explains the distinction between conditional fee agreements and damages-based agreements in the employment tribunal context. The client mentions that he is a member of a trade union and asks whether the union might assist with funding. The solicitor advises him to check with his union representative.
Is civil legal aid available for this employment discrimination claim?
Question 2
Scenario
A solicitor is advising a client who has been the victim of modern slavery. The client was brought to the United Kingdom from abroad and forced to work in a cannabis factory for two years without payment. The client has escaped and is being supported by a charity. The client wishes to bring a civil claim for compensation against the individuals who exploited her. She also needs advice on her immigration status, as she entered the country illegally. The client has no income and no assets. The solicitor considers the funding options. The client's situation is urgent, as the Home Office has initiated removal proceedings. The charity worker explains that the client has been referred to the National Referral Mechanism and has received a positive reasonable grounds decision. The solicitor is aware that victims of modern slavery may have specific entitlements regarding legal aid. The client is also frightened that cooperating with the authorities will put her at risk from her former exploiters. The solicitor reassures the client about confidentiality. The client asks whether she will have to pay anything towards the cost of legal representation.
Is civil legal aid available for the client's civil compensation claim and immigration advice?
Question 3
Scenario
A solicitor is instructed by a client who wishes to bring a claim for breach of fiduciary duty against a former business partner. The claim is valued at £400,000. The client does not have the resources to fund the litigation privately and asks the solicitor about available funding options. The solicitor discusses four possible funding mechanisms: a conditional fee agreement, a damages-based agreement, third-party litigation funding, and legal expenses insurance. The client does not have legal expenses insurance. The solicitor explains that the client could enter into a CFA with a success fee or a DBA under which the solicitor would receive a percentage of damages. The client is confused about the difference between the two types of agreement and asks the solicitor to clarify. The client is particularly concerned about what happens if the claim fails. Under a CFA, the client would owe nothing in solicitor's fees if the case is lost, but would remain liable for the defendant's costs. Under a DBA, the same position applies. The solicitor recommends the CFA with a success fee of 60% and advises the client to obtain after-the-event insurance.
What is the key difference between a conditional fee agreement and a damages-based agreement in relation to how the solicitor's fees are calculated?
Practice with full exam-style questions
Related Topics
- SQE1 The Legal System: Complete Guide
- The Legal Profession and Regulation for SQE1
- Civil vs Criminal Court Systems for SQE1
- Structure of the Courts for SQE1
Practise Access To Justice And Funding Questions for SQE1
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