The Department of Constitutional Affairs (DCA) has admitted that the re-introduction of means-testing for criminal legal aid under the Criminal Defence Service Act 2006 may lead to defendants being unable to afford legal representation.

In its 'Final Regulatory Impact Assessment' of the Criminal Defence Service (CDS) Act 2006, published today, the DCA says it accepts there is "a risk that those defendants who are refused public funding due to their means, are unable or unwilling to pay for the help they receive at private rates".

The Act will introduce a new 'financial eligibility' or means test for defendants applying for legal into magistrates courts from 2 October this year and extend the scheme to Crown Courts by the end of 2007.

The DCA says it has investigated concerns that the new tests may adversely affect solicitors' incomes and concludes, rather equivocally, that it is "difficult to identify whether some firms will be more affected than others" as it will depend on the kind of "customers they attract".

"Firms that represent a greater proportion of their clients in straightforward matters at the magistrates' court may be more affected then firms representing clients in serious cases in the Crown Court, as there may be a greater number of defendants who are ineligible for public funding for less serious cases," the assessment states.

"Similarly introducing a financial eligibility test may have a beneficial affect on firms with offices in more affluent areas, as individuals may become ineligible for public funding but be more prepared to pay private rates."

?The completion of the lengthy new application form could create a considerable amount of unpaid work for solicitors. Many clients will not be able to complete the application form themselves, and there appears to be no provision for court staff to assist them, which means that this work will fall to the solicitor.?
 
Under the new Act and its corresponding regulations, an individual will be financially eligible for a representation order if their gross income is ?11,590 or less and automatically ineligible if it tops ?20,740. Those whose income falls in between the two amounts will have their annual disposable income calculated and will qualify for legal aid if this falls below ?3,156. A Hardship Review Provision will allow individual to appeal against if their particular circumstances mean they cannot afford legal costs or where the cost of the case is particularly high.

However, the Law Society told Solicitors Journal it had concerns that the new scheme would lead to more work for solicitors trying to process their client's applications. A Law Society spokesperson said: "The Society has concerns that the completion of the lengthy new application form could create a considerable amount of unpaid work for solicitors. Many clients will not be able to complete the application form themselves, and there appears to be no provision for court staff to assist them, which means that this work will fall to the solicitor.

"There is also a large amount of detailed financial information required from the client, which in many cases may not be practical or possible to obtain prior to the first hearing, if at all. Where the client fails the initial means test, in many cases a Hardship application will need to be made, which will require additional work on the part of the solicitor."

The CDS Act also passes over the power to grant the right to publicly funded representation from the Courts to the Legal Services Commission (LSC). This has proved controversial with the Bar Council saying it "will turn what should be a judicial decision into an administrative one, and result in a loss of confidence in the system.? However, the DCA insists a service level agreement between the LSC and the courts means a ?close working relationship will be established to ensure the success of revised arrangements?.

The Impact Assessment states that under the new scheme 46 per cent of defendants subject to the financial eligibility testing will be ineligible for public funding. It also estimates that the cost of implementation and support will be up to ?10m a year, but that it will generate gross annual savings of ?58m in legal aid.

The means test for criminal legal aid was originally scrapped four years ago, and replaced with a ?merit? test. Ministers are concerned that, since then, there has been a rise of one third in people claiming legal aid for magistrates? court cases. Legal aid is available for anyone charged with a crime.