Standard 5.2 on Eligibility Guidelines

Standard 5.1 | Table of Contents | Standard 5.3

Standard

A legal aid organization should establish clear written guidelines to determine an applicant's eligibility.

Commentary

General Considerations

Different types of organizations will have different kinds of guidelines for eligibility. Most sources of funding for legal aid set eligibility limits based on income or other financial criteria. Others may use guidelines that relate to the applicant's status or personal characteristics, such as age, place of residence, or membership in a particular, targeted population. Still others determine eligibility based on the kind of legal problem that the applicant for service is facing, and that organization only handles a limited range of legal problems or only provides a certain level of service. In some situations, eligibility criteria are determined by restrictions imposed by the organization's funding sources, which may exclude specific populations or problem types, or restrict the organization to representation in only certain types of cases. Whatever its specific criteria, an organization should establish a written policy governing eligibility. 

In setting eligibility guidelines that are based on financial criteria, an organization should take into consideration local economic conditions, as well as the organization's available resources and established priorities. The guidelines should encourage commonsense judgments at intake about the applicant's eligibility, consistent with organization guidelines and the funders' requirements. Specific written guidelines may cover a variety of objective criteria, including prospective income, seasonal employment, available assets, family debts and work-related expenses, as well as other factors that affect the applicant's financial situation at the time services are requested.

Eligibility policies should make it clear that a determination of financial or other type of eligibility does not guarantee that the organization will represent the individual. In addition to the organization's case acceptance policies, the organization may also consider factors such as the availability of other assistance to resolve the problem or the consequences to the applicant if service is denied. 

Eligibility guidelines should be adopted by the governing body and, if practicable, should be developed with client participation and based on funder requirements. The governing body should reevaluate the guidelines periodically, particularly when changes occur in economic conditions within the community or in the organization's resources.

Eligibility Determinations

The organization should have systems in place to ensure that it obtains sufficient information during the intake interview to permit fair and thoughtful application of established eligibility guidelines. If an organization's eligibility is based on financial factors, the organization should have systems to record sufficient data about an applicant's financial status to make an appropriate eligibility determination. If eligibility for services from the organization is based on other criteria, such as the applicant's type of legal problem, status, or membership in a targeted population, the organization should also have systems to record information about the applicant or the legal problem for which assistance is sought to enable the organization's staff to decide the applicant's eligibility for the organization's services.

Applicant information should be obtained and maintained in a structured intake process that protects confidentiality, demonstrates respect of the applicant for service, follows a process that ensures avoidance of conflicts of interest, encourages the development of a relationship of trust between the applicant and the organization, and conforms to applicable ethical requirements. For example, questions about family size and domestic or marital status should account for nontraditional family structures of LGBTQ+ applicants and others. Applicant information should capture data related to funding and reporting requirements. To the extent practicable, determinations of conflict of interests should be made before gathering case-specific information from an applicant.

Information should be recorded in sufficient detail to document compliance with the eligibility guidelines and to provide a record for review if the decision regarding eligibility is challenged. A decision regarding the applicant's eligibility should be made as quickly as circumstances permit it to be made, allowing those who are ineligible for service adequate time to take other steps to protect their interests. Applicants who are ineligible for assistance should be referred to other sources of help, if available. Information regarding the referral or resource provided to the applicant should be recorded along with the eligibility information.

If substantial reason exists to doubt the accuracy of the information the applicant gives, the organization should make appropriate efforts to verify that information. The organization should inform the applicant of any attempt to contact a third party to verify eligibility information. The organization should provide an opportunity for the applicant to explain or rebut any additional information obtained before a final eligibility determination is made.

Some organizations may delegate eligibility screening to persons or agencies other than its own staff or volunteers. In such circumstances, the governing body should establish specific procedures for making eligibility determination, consistent with this Standard, and should closely monitor the third party for compliance.

Focusing Resources in Case Selection

The goals and priorities established by an organization should identify a broad outline of issues affecting clients and will determine which categories of legal problems the organization should address.The organization's case acceptance policy should be designed to provide further guidance in implementing the priorities by stating, in general, the type or level of service that the organization will offer, if any, to address different kinds of legal problems. An organization may decide, for instance, generally whether it will consider full representation, limited legal representation or non-representational services for different kinds of problems. 

In determining the level of service that will be offered for various types of legal problems, the organization should consider a variety of factors, including the following:

• The degree of importance accorded the issue in the organization's priorities;
• The potential benefit to the client community in general if the issue is successfully pursued with full representation.
• The potential consequences to individuals with that type of legal problem if only limited representation or nonrepresentational assistance is offered.
• The availability of nonrepresentational services from the organization or elsewhere that might help individual applicants resolve that type of problem; 
• The existence of collaborative relationships with other organizations, such as domestic violence shelters, that work with the organization to support individuals with the type of legal problem.
• The availability of new sources of funds to support the organization in addressing the legal problem.
  
  The policy should also guide the evaluation of the specific legal problems presented by each applicant to determine if the individual will be accepted for service. Considerations that are appropriate for determining how to treat each applicant's legal problem include:

• The likelihood of success, based on the merits and the facts at hand;
• The existence of sufficient organizational resources to ensure high-quality representation if the case is accepted for full representation; 
• The availability of other legal resources to assist the organization in handling the case, including the availability of outside attorneys who may be willing to co-counsel or provide other support; 
• The applicant's capacity to benefit from limited legal assistance if full representation is not offered, including personal factors, such as the individual's understanding of the legal system, language facility, or the ability to take time off from work; and
• Whether the individual has additional, related legal problems that also need to be addressed for the individual to resolve the underlying problem.

In addition, it is important for the organization to have the capacity to observe trends in the legal needs of client communities and to identify newly emerging legal issues that it may not be addressing currently. This may include the use of Geographic Information System (GIS) mapping tools and information from the courts and other human services organizations to help the organization identify areas of need and emerging legal issues in the communities it serves.

Procedures in Applying the Organization's Case Acceptance Policy

Every individual who interviews prospective clients to determine acceptance should be thoroughly skilled in interviewing techniques and should have the ability to elicit appropriate facts that enable the organization to make an informed decision about whether the applicant should be accepted for representation or should be offered nonrepresentational services. Such individuals should be fully versed in the kinds of services that the organization offers and should have access to information regarding outside resources that are available for referrals for those applicants who are not accepted for service.