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Legal aid is the provision of financial assistance to persons in need of access to justice and is available in clinical negligence claims in limited circumstances.

The law sets out the types of legal cases for which legal aid is available. Since April 2013, legal aid for claims on clinical negligence has been reduced drastically such that it is now only available to one category of claimants, that being children who have suffered a severe neurological injury during their mother’s pregnancy, their delivery or in the first 8 weeks of the child’s life.

Why Legal Aid is Necessary

The majority of clinical negligence claims are funded through a Conditional Fee Agreement (CFA) between us and the client. These are commonly known as ‘no win no fee’ agreements. This means we don’t get paid for our work if the claim is not successful, and we rely on insurance to cover the expenses we incur in unsuccessful claims. However, where a claim is successful, our client would pay a “success fee” and insurance premium out of their compensation.

Some types of case, and some clients, might be eligible for legal aid. The main advantage to the client is that, if their claim is successful, they would not have to pay a success fee or insurance premium, and they would usually keep all the compensation that was awarded.  If the claim is unsuccessful, they would have nothing to pay either.

Claiming under Legal Aid

When a claim is brought on behalf of a child, although they will be assisted by a litigation friend (usually a parent or a legal guardian) it is the child who receives legal aid and the decision to grant legal aid is based upon the child’s circumstances.

The criteria that needs to be met is as follows: –

  1. The child must have suffered a severe neurological injury, usually a brain injury however injury to the brachial plexus (known as Erb’s Palsy) are also included within this category;
  2. The clinical negligence must have occurred either
    1. During pregnancy
    2. During or immediately after the child’s birth
  3. If the child was born before the beginning of the 37th week of pregnancy, the period of 8 weeks begins from the first day of what would have been that week or
  4. If the child was born during or after the 37th week of pregnancy, the period of 8 weeks beginning with the day of the child’s birth.

Eligibility for legal aid is assessed both upon the child’s means and upon the merits of the case.

Means Test

To satisfy the means test the child must have a monthly income of not more than £2756 including a disposable income not exceeding £733 per month and capital not exceeding £8000.

If the child has savings between £3000 and £8000 a contribution may be payable towards the cost of legal aid.

Merits Test

The Legal Aid Agency will also carefully assess the merits of your child’s case and grant funding only where they consider the claim has good prospects of success. A serious incident investigation report or response to a written complaint can be of great benefit in assisting in making an application for legal aid.

How can Pryers Help you?

Having secured a legal aid contract, Pryers are able to offer this as a service should you require it. Our experienced solicitors are fully equipped with an in-depth knowledge of the Legal Aid System and in managing birth injury claims. We will be with you every step of the way throughout your claim.

Speak to one of our experts today, if you believe, you or a loved one have been a victim of medical negligence in this area and we will be happy to discuss the case with you, to guide you through the next best steps to take.

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