The short answer
The merits test asks whether your case deserves public money. In broad terms: is there a reasonable prospect of achieving something worthwhile, and does what you might gain justify what it would cost? It is separate from the means test, and you can pass one and fail the other.
Key points
- Merits and means are two different tests. Both have to be passed.
- The core question is whether a reasonable person paying their own money would bring the case.
- A strong case that achieves almost nothing can fail. So can a weak case with a lot at stake.
- Care proceedings are exempt. Parents get funding with no means test and no merits test.
- A merits refusal can be appealed to an independent funding adjudicator. A scope refusal cannot.
What is actually assessed
Three things, roughly.
Prospects of success. How likely are you to get what you are asking for? Cases assessed as poor are not funded. Cases with genuinely unclear prospects can sometimes be funded for limited work so the position can be established.
Proportionality. Does the likely benefit justify the likely cost? This is the one that surprises people. A case you would probably win can still be refused if winning achieves little and costs a great deal.
Whether it is reasonable to fund. Is there another way to resolve this? If the dispute could sensibly go to mediation and you have not tried, that is relevant.
You may qualify
Care proceedings are different. If a local authority brings care or supervision proceedings, parents and anyone with parental responsibility get legal aid automatically, with no means test and no merits test. Nobody assesses whether your case is worth funding.
If a social worker has told you proceedings are starting, ring a legal aid family firm the same day.
Why a case can pass means and fail merits
The most common example is an argument about a modest sum where the legal costs would exceed the amount in dispute. You may be entirely in the right. Funding it would still cost more than it recovers, and the test is designed to catch exactly that.
Another is where the relief you are seeking would not change anything in practice, or where a court has already decided the point and nothing material has changed since.
None of that is a judgement on you or on whether you were believed. It is an assessment of what the case can achieve.
What happens if you fail it
Ask your provider two questions: which limb failed, and what the appeal route is.
Unlike a refusal on scope, a merits refusal can be reviewed by an independent funding adjudicator. There are deadlines, and your provider handles the process, so ask promptly.
If prospects were the problem, further evidence can sometimes change the assessment. If proportionality was the problem, a narrower application asking for less can sometimes succeed where a broad one failed.