Editorial: legal aid thresholds should be reviewed with data

This is an editorial by the AGENTE LEX newsroom. It expresses the portal's opinion.

The right to litigate without paying a lawyer or court representative when one lacks the means is one of the pieces that make access to justice real. Law 1/1996 of 10 January on free legal assistance, whose consolidated text is shown as updated to 3 January 2025, regulates it. And it does so with a seemingly simple rule: an income threshold expressed in multiples of the IPREM, the public multiple-purpose income indicator.

What the law says

Under Article 3, those entitled, if they lack sufficient assets, are individuals whose gross annual income does not exceed:

Article 5 allows, exceptionally and by reasoned decision, recognising the right of someone who exceeds those limits without going over five times the IPREM.

And Article 36 recalls the reverse: if the person who obtained the benefit is ordered to pay costs and, within three years of the end of the proceedings, their fortunes improve, they must pay the costs incurred in their defence and those of the other party. The law presumes that improvement when their income exceeds twice the module in Article 3.

Why the thresholds need a look

The problem with any threshold is that the world changes and the threshold does not always change at the same pace. Legal aid is not measured against wages or the real cost of proceedings, but against a public indicator. If the IPREM evolves differently from incomes and the cost of living, the border between those who can afford a lawsuit and those who cannot shifts without anyone expressly deciding it.

We do not claim here that the current thresholds are low or high: that would need comparable data this editorial has not been able to consult. What we maintain is that a rule of access to a fundamental right should be assessed periodically with public data.

What we ask for

Public, comparable statistics. How many applications are filed, how many are granted and how many are refused for exceeding the threshold, by territory and by year.

An evaluation of the thresholds. Compare the IPREM multiples with the average cost of the most frequent proceedings and with the real incomes of those who fall just above.

More clarity on exceptional recognition. Article 5 is a necessary valve, but its application depends on a case-by-case assessment. Public criteria would help make it predictable.

Clear information on improved fortunes. Every beneficiary should know that an economic improvement in the following three years may oblige them to pay costs. Explaining it systematically when the right is recognised would avoid surprises.

The other side of the system

The thresholds determine who enters the system. On the other side are the duty counsel lawyers who sustain it, whose compensation has just been updated, as we explain in the analysis of the new duty counsel fee modules. We already argued that those modules must recognise all the work, including prior negotiations without agreement, in the editorial on duty counsel and ADR.

A legal aid system works when those who need it can enter and those who provide it receive fair compensation. Both can be measured. And both should be reviewed with public, periodic data, so that the debate on legal aid depends not on impressions but on figures anyone can check. More editorials in Opinion.