Can I get legal aid to challenge a standard authorisation?

Is someone you love detained in a care home or hospital against their wishes?
Do you want to challenge this but don’t know if you can afford to?
In my previous videos in this series I explained how you can challenge someone’s deprivation of liberty under a standard authorisation in the Court of Protection, when a person lacks the capacity to make the decision about where to live themselves.
In this video, I will look at how you can fund this challenge with legal aid.
My name is Olivia Allen and I work in the Court of Protection department at GN Law.
So, how can you fund your challenge to somebody's standard authorisation?
As this area of law concerns somebody being deprived of their liberty, potentially against their wishes, legal aid is available to challenge it. This means the government will pay for your legal fees if you are eligible for it.
Importantly, this legal aid could be non-means tested, which means that you would not have to earn under a certain threshold in order to be eligible, but that you could get legal aid regardless of what you earn, however high or low.
However, note that this non-means tested legal aid is only available if you are the detained person themselves (i.e. the person who lacks capacity) or their relevant person’s representative (their RPR).
If you are not the detained person or their RPR, then you will only be eligible for means-tested legal aid This means you will need to meet certain income and capital thresholds. For example, you will not be able to get full legal aid cover if you earn above £733 of disposable income per month and have £8,000 in capital.
But remember, if you are receiving a ‘passporting benefit’ (for example, income related support), then you will not need to pass the income threshold (though you would still need to satisfy the capital threshold).
Now, whether you can get non-means tested, or means-tested legal aid, in both cases you will have to satisfy a merits threshold as well. This means that your case will have to have valid grounds to be brought, in other words, about a 60-80% chance of success.
But don’t worry, this element is quite easy to show. Depriving someone of their liberty is a serious matter, and it will almost always be in someone’s best interests to check that this deprivation is lawful, particularly if they are objecting to where they’re staying.
You should now have an idea of if you can get legal aid funding in order to challenge someone’s deprivation of liberty under a standard authorization.
But finally, please note that the Deprivation of Liberty Safeguards scheme will be changing in October 2020, and we have other videos on the new scheme, which you may find helpful.
If you need help and advice on this or any other Court of Protection matter call me today on 0208 492 2290, and if you found this video helpful, please share it.