The Civil Legal Aid (Scotland) Regulations 1996

Regulation 3

SCHEDULE 1 REGULATIONS REVOKED

Title	Reference
The Civil Legal Aid (Scotland) Regulations 1987	S.I. 1987/381
The Civil Legal Aid (Scotland) Amendment Regulations 1987	S.I. 1987/431
The Civil Legal Aid (Scotland) Amendment Regulations 1988	S.I. 1988/490
The Civil Legal Aid (Scotland) Amendment (No.2) Regulations 1988	S.I. 1988/1171
The Civil Legal Aid (Scotland) Amendment (No.3) Regulations 1988	S.I. 1988/1891
The Civil Legal Aid (Scotland) Amendment Regulations 1989	S.I. 1989/505
The Civil Legal Aid (Scotland) Amendment Regulations 1990	S.I. 1990/631
The Civil Legal Aid (Scotland) Amendment Regulations 1991	S.I. 1991/745
The Civil Legal Aid (Scotland) Amendment (No.2) Regulations 1991	S.I. 1991/1904
The Civil Legal Aid (Scotland) Amendment Regulations 1992	S.I. 1992/753
The Civil Legal Aid (Scotland) Amendment Regulations 1993	S.I. 1993/535
The Civil Legal Aid (Scotland) Amendment (No.2) Regulations 1993	S.I. 1993/818
The Civil Legal Aid (Scotland) Amendment Regulations 1994	S.I. 1994/1049
The Civil Legal Aid (Scotland) Amendment Regulations 1995	S.I. 1995/1065
The Civil Legal Aid (Scotland) Amendment Regulations 1996	S.I. 1996/812

Regulation 10

SCHEDULE 2 RULES FOR COMPUTING DISPOSABLE INCOME

1.  The income of the person concerned from any source shall be taken to be the income which that person may reasonably expect to receive (in cash or in kind) during the period of computation, that income in the absence of other means of ascertaining it being taken to be the income received during the preceding year.

2.  The income in respect of any emolument, benefit or privilege receivable otherwise than in cash shall be estimated at such a sum as in all the circumstances is just and equitable.

3.—(1) The income from a trade, business or gainful occupation other than an employment at a wage or salary shall be deemed to be the profits therefrom which have accrued or will accrue to the person concerned in respect of the period of computation and, in computing such profits, the Board may have regard to the profits of the last accounting period of such trade, business or gainful occupation for which accounts have been made up.

(2) In ascertaining the profits for the purpose of the last foregoing sub-paragraph there shall be deducted all sums necessarily expended to earn those profits, provided that no deduction shall be made in respect of the living expenses of that person or any member of his family or household, except in so far as such member of his family or household shall be wholly or mainly employed in such trade or business and such living expenses form part of his remuneration.

4.—(1) In computing the disposable income of the person concerned there shall be deducted the total amount of tax which it is estimated would be payable by the person concerned if his income, as computed in accordance with the foregoing rules of this Schedule (but without taking into account the operation of regulation 11(1) of these Regulations), were his income for a fiscal year and his liability for tax in that year were to be ascertained by reference to that income and not by reference to his income in any other year or period.

(2) For the purposes of this rule the tax shall be estimated at the rate provided by and after making all appropriate allowances, deductions or reliefs in accordance with the provisions of the Income Tax Acts in force for the fiscal year current at the date of the application.

5.  In computing the disposable income of the person concerned, there shall be disregarded–

(a) income support paid under section 124 of the 1992 Act;

(b) an income-based jobseeker’s allowance;

(c) so much of any back to work bonus received under section 26 of the Jobseekers Act 1995 as is by virtue of that section to be treated as payable by way of a jobseeker’s allowance;

(d) any payment made by the Secretary of State under the Earnings Top-up Scheme 1996(1).

6.  There shall be disregarded £4 a week of the income taken into account in so far as it consists of interest or dividends payable on a loan or investment where that loan or investment forms part of the disposable capital of the person concerned.

7.  There shall be disregarded–

(a) disability living allowance paid under section 71 of the 1992 Act;

(b) constant attendance allowance paid as an increase to a disablement pension under section 104 of the 1992 Act;

(c) any sums paid to a person as holder of the Victoria Cross or the George Cross;

(d) any payment made out of the social fund under section 138 of the 1992 Act.

8.  When the income of the person concerned consists, wholly or in part, of a wage or salary from employment there shall be deducted–

(a) the reasonable expenses of travelling to and from his place of employment;

(b) the amount of any payments reasonably made for membership of a trade union or professional organisation;

(c) when it would be reasonable to do so, an amount to provide for the care of any dependent child living with the person concerned during the time that person is absent from the home by reason of employment; and

(d) the amount of any contribution paid, whether under a legal obligation or not, to an occupational pension scheme or to a personal pension scheme within the meaning of section 1 of the Pension Schemes Act 1993(2).

9.  There shall be a deduction in respect of contributions payable by the person concerned (whether by deduction or otherwise) under the 1992 Act of the amount estimated to be so payable in the 12 months following the application.

10.  There shall be a deduction in respect of the amounts payable or estimated to be payable in the 12 months following the application by the person concerned in respect of–

(a) the council tax and the rate as defined in section 99(1) and (2)(a) of the Local Government Finance Act 1992(3); and

(b) charges payable under an order made by virtue of section 79 of the Local Government etc. (Scotland) Act 1994(4).

11.—(1) There shall be a deduction, in respect of rent of the main or only dwelling in the case of a householder, of the amount of the net rent paid or such part thereof as is reasonable in the circumstances; provided that any contributions received from any other person towards that payment of rent shall be taken into account as income, and the Board shall decide which is the main dwelling where the person concerned resides in more than one dwelling in which he has an interest.

(2) In this rule the expression “rent” means–

(a) the feu duty or ground annual or the rent payable in respect of a year; and

(b) a sum in respect of the yearly outgoings borne by the householder including, in particular, a reasonable allowance towards any necessary expenditure on repairs and insurance and any other annual burden, including any annual instalment (whether of interest or capital) payable in respect of a heritable security (within the meaning of section 9(8)(a) of the Conveyancing and Feudal Reform (Scotland) Act 1970(5)) or a real burden ad factum praestandum.

(3) In this rule the expression “net rent” means–

(a) the rent less any proceeds of sub-letting any part of the premises in respect of which the said rent is paid or the outgoings incurred; or

(b) where any person or persons other than the person concerned, his or her spouse or any dependent of his or hers is accommodated, otherwise than as a sub-tenant, in the premises for which the rent is paid, the rent less such an amount as the Board may determine to be reasonably attributable to the accommodation of such person.

12.  If the person concerned is not a householder, there shall be a deduction in respect of the cost of his living accommodation of such amount as is reasonable in the circumstances.

13.—(1) There shall be a deduction in respect of the maintenance of the spouse of the person concerned, if the spouses are living together, in respect of the maintenance of any dependent child and in respect of the maintenance of any dependent relative of the person concerned, being (in either of such cases) a member of his or her household, at the following rates:–

(a) in the case of a spouse, at a rate equivalent to the difference, as at the date when the computation period began, between the income support allowance for a couple where both members are aged not less than 18 (which is specified in column 2 of paragraph 1(3)(c) of Part I of Schedule 2 to the Income Support (General) Regulations 1987(6)), and the allowance for a single person aged not less than 25 (which is specified in column 2 of paragraph 1(1)(e) of Part I of Schedule 2 to those Regulations(7));

(b) in the case of a dependent child or a dependent relative, at a rate equivalent to the amount specified in paragraph 2 of Part I of Schedule 2 to the Income Support (General) Regulations 1987(8) appropriate to the age of the child or relative at the date when the computation period began:

• Provided that the Board may reduce such rate by taking into account the income and other resources of the dependent child or other dependent to such extent as appears to the Board to be just and equitable.

(2) In ascertaining whether a child is a dependent child and whether a person is a dependent relative regard shall be had to their income and other resources.

14.  If the person concerned is making and, throughout such period as the Board may consider adequate, has regularly made bona fide payments for the maintenance of a spouse who is living apart, of a former spouse, of a child or of a relative who is not (in any of such cases) a member of the household of the person concerned, there shall be a deduction at the rate of such payments or at such rate, not exceeding the rate of such payments, as in all the circumstances is reasonable.

15.  Where the person concerned must provide for any other matter the Board may make an allowance of such amount as it considers to be reasonable in the circumstances of the case.

16.  In computing the income from any source there shall be disregarded such amount, if any, as the Board considers to be reasonable having regard to the nature of the income or to any other circumstances of the case.

Regulation 10

SCHEDULE 3 RULES FOR COMPUTING DISPOSABLE CAPITAL

1.  Subject to the provisions of these Regulations, there shall be included in the computation of the amount of the capital of the person concerned the amount or value of every resource of a capital nature ascertained as on the date of the application for legal aid:

Provided that, where it is brought to the notice of the Board that, between the date of the application and the determination there has been a substantial fluctuation in the value of a resource or there has been a substantial variation in the nature of a resource affecting the basis of computation of its value, or any resource has ceased to exist or a new resource has come into the possession of the person concerned, the Board shall compute the capital resources of that person in the light of such facts and the resources as so computed shall be taken into account in the determination.

2.  So far as any resource does not consist of money, the amount or value thereof shall be taken to be the amount which that resource would realise if sold in the open market or, if there is only a restricted market for that resource, the amount which it would realise in that market, or shall be taken to be the amount or value thereof assessed in such manner as appears to the Board to be just and equitable.

3.  Where money is due to the person concerned, whether immediately payable or otherwise and whether the payment thereof is secured or not, the value shall be taken to be the present value thereof.

4.  If the person concerned stands in relation to a company in a position analogous to that of a sole owner or partner in the business of that company, the Board may, in lieu of ascertaining the value of his stocks, shares, bonds or debentures in that company, treat that person as if he were such sole owner or partner and compute the amount of his capital in respect of that resource in accordance with the succeeding rule.

5.  Where the person concerned is or is to be treated as the sole owner of or a partner in any business, the value of such business or his share therein to that person shall be taken to be either–

(a) such sum, or his share of such sum, as the case may be, as could be withdrawn from the assets of such business without substantially impairing the profits of such business or the normal development thereof; or

(b) such sum as that person could borrow on the security of his interest in such business without injuring the commercial credit of that business;

whichever is the greater.

6.  The value of any interest, whether vested or contingent, of the person concerned in the fee of any heritable or moveable property forming the whole or part of any trust or other estate, shall be computed by the Board in such manner as appears to it to be both equitable and practicable.

7.  In computing the amount of capital of the person concerned where that person is in receipt of income support under section 124 of the 1992 Act, there shall be disregarded any amount which exceeds the sum for the time being specified as the disposable capital limit under section 17(2)(b) of the Act.

8.  In computing the amount of capital of the person concerned, there shall be wholly disregarded–

(a) any payment which is made out of the social fund under section 138 of the 1992 Act;

(b) so much of any back to work bonus received under section 26 of the Jobseekers Act 1995 as is by virtue of that section to be treated as payable by way of a jobseeker’s allowance.

9.  Save in exceptional circumstances, nothing shall be included in the amount of capital of the person concerned in respect of–

(a) the household furniture and effects of the dwelling house occupied by him;

(b) articles of personal clothing; and

(c) the personal tools and equipment of his trade, not being part of the plant or equipment of a business to which the provisions of rule 5 of this Schedule apply.

10.—(1) In computing the amount of capital of the person concerned, the value of any interest in the main or only dwelling in which he resides shall be wholly disregarded.

(2) Where the person concerned resides in more than one dwelling in which he has an interest, the Board shall decide which is the main dwelling and shall take into account in respect of the value to him of any interest in a dwelling which is not the main dwelling any sum which might be obtained by borrowing money on the security thereof.

11.  Where the person concerned has received or is entitled to receive from a body of which he is a member a sum of money by way of financial assistance towards the cost of the proceedings in respect of which legal aid is applied for, such sum shall be disregarded.

12.  The value of any life assurance or endowment policy shall be taken to be the amount which the person concerned could readily borrow on the security thereof.

13.  Where under any statute, bond, agreement, indemnity, guarantee or other instrument the person concerned is under a contingent liability to pay any sum or is liable to pay a sum not yet ascertained, an allowance shall be made of such an amount as is reasonably likely to become payable within the 12 months immediately following the date of application for legal aid.

14.  An allowance may be made in respect of any debt owed by the person concerned (other than a debt secured on the dwelling or dwellings in which he resides) to the extent to which the Board considers reasonable, provided that the person concerned produces evidence to its satisfaction that the debt or part of the debt will be discharged within the twelve months immediately following the date of the application.

15.—(1) Where the person concerned is of pensionable age and his annual disposable income (excluding any net income derived from capital) is less than the figure prescribed in section 17(2)(a) of the Act there shall be disregarded the amount of capital as specified in the following table:–

Annual disposable income (excluding net income derived from capital)	Amount of capital disregarded
Up to £350	£35,000
£ 351 — £ 800	£30,000
£ 801 — £1,200	£25,000
£1,201 — £1,600	£20,000
£1,601 — £2,050	£15,000
£2,051 — £2,450	£10,000
£2,451 and above	£ 5,000

(2) In this Schedule “pensionable age” means–

(a) in the case of a man, the age of 65; and

(b) in the case of a woman, the age of 60.

16.  In computing the amount of capital of the person concerned there shall be wholly disregarded any capital payment received from any source which is made in relation to the subject matter of the dispute in respect of which the application for legal aid has been made.

17.  In computing the amount of capital there shall be disregarded such an amount of capital, if any, as the Board in the circumstances of the case may in its discretion decide.

(1)

This Scheme, which applies only in certain areas of Great Britain, is an extra statutory Scheme introduced by the Secretary of State for Social Security having effect on 8th October 1996. Copies of the rules of the Scheme may be obtained from the Customer Service’s Manager, Earnings Top-up, Norcross, Blackpool, FY5 3TA and will be available for inspection at the Department of Social Security, 9th Floor, Adelphi, 1-11 John Adam Street, London, WC2N 6HD and Offices of the Benefits Agency and Employment Job Centres which serve the areas specified in Schedule 1 to the Scheme.

(2)

1993 c. 48.

(3)

1992 c. 14.

(4)

1994 c. 39.

(5)

1970 c. 35.

(6)

S.I. 1987/1967; paragraph 1(3) was substituted by S.I. 1996/206.

(7)

The allowance specified was amended by S.I. 1995/559.

(8)

The amount specified was amended by S.I. 1995/559.