The Civil and Criminal Legal Aid (Financial Resources and Contribution Orders) (Amendment) Regulations 2024

Amendments to the Civil Legal Aid (Financial Resources and Payment for Services) Regulations 2013

2.—(1) The Civil Legal Aid (Financial Resources and Payment for Services) Regulations 2013(1) are amended as follows.

(2) In regulation 2 (interpretation) insert at the appropriate places—

““the Infected Blood Compensation Scheme” means the nationwide government-funded compensation scheme established by regulations made under section 49 of the Victims and Prisoners Act 2024(2), and administered by the Infected Blood Compensation Authority established under section 48 of the Victims and Prisoners Act 2024;”;

““the Infected Blood Further Interim Compensation Payment Scheme” means the scheme of that name administered by the persons who administer the Relevant Infected Blood Support Schemes (whether or not in conjunction with other persons);”;

““the Infected Blood Interim Compensation Payment Scheme” means the scheme of that name administered by the persons who administer the Relevant Infected Blood Support Schemes (whether or not in conjunction with other persons);”;

““Modern Slavery Victim Care Contract or equivalent payment” means any payment of government-funded financial assistance made—

(a)

in England and Wales under the Modern Slavery Victim Care Contract in accordance with guidance issued by the Secretary of State under section 49 of the Modern Slavery Act 2015(3);

(b)

in Northern Ireland under section 18 of the Human Trafficking and Exploitation (Criminal Justice and Support for Victims) Act (Northern Ireland) 2015(4);

(c)

in Scotland under section 9 of the Human Trafficking and Exploitation (Scotland) Act 2015(5) or regulations made under section 10 of that Act;”;

““payment for historical child abuse” means any of the following—

(a)

a payment of compensation made by the Historical Institutional Abuse Redress Board established under the Historical Institutional Abuse (Northern Ireland) Act 2019(6) to and in respect of an individual who suffered abuse as a child while resident in an institution in Northern Ireland at some time between 1922 and 1995 (both inclusive);

(b)

a payment for financial redress and related support made under the redress scheme established by the Redress for Survivors (Historical Child Abuse in Care) Scotland Act 2021(7) to and in respect of an individual who was abused as a child before 1st December 2004 while resident in certain care settings in Scotland;”;

““social security enactment” has the same meaning as in paragraph 8 of Part 1 of Schedule 1 to the Act;”;

““the Victims of Overseas Terrorism Compensation Scheme 2012” means the government-funded compensation scheme established under arrangements made by the Secretary of State under section 47 of the Crime and Security Act 2010(8);”.

(3) In regulation 24 (payments to be disregarded from calculation of disposable income or gross income)—

(a) in paragraph (1)(t) for “the Caxton Foundation or a Relevant Infected Blood Support Scheme” substitute “the Caxton Foundation, a Relevant Infected Blood Support Scheme, the Infected Blood Interim Compensation Payment Scheme, the Infected Blood Further Interim Compensation Payment Scheme, the Infected Blood Compensation Scheme, or arrangements made by the Secretary of State or the Minister for the Cabinet Office under section 56(1) of the Victims and Prisoners Act 2024(9)”;

(b) after paragraph (1)(x) insert—

“(y) any payment for historical child abuse;

(z) any Modern Slavery Victim Care Contract or equivalent payment;

(z1) any payment of compensation for a miscarriage of justice made under section 133 of the Criminal Justice Act 1988(10).”;

(c) in paragraph (3) after “may” insert “, subject to paragraphs (3B) and (3C),”;

(d) in paragraph (3A)—

(i) after “may” insert “, subject to paragraphs (3B) and (3C),”;

(ii) after sub-paragraph (a) omit “and”;

(iii) after sub-paragraph (b) insert—

“(c) any payment of compensation made under the Victims of Overseas Terrorism Compensation Scheme 2012.”;

(e) after paragraph (3A) insert—

“(3B) In determining whether to disregard any payment falling within paragraphs (3) and (3A)—

(a) subject to sub-paragraph (b), the Director may disregard the whole of a payment where the following conditions are met—

(i) the payment was for personal harm or was for a specified purpose; and

(ii) the payment was not for a loss of income;

(b) where a payment for personal harm or a specified purpose includes, in part, an amount for a loss of income—

(i) where the Director is able to ascertain the amount of the part which is for a loss of income, the Director may disregard only the amount of the part which is not for a loss of income; or

(ii) where the Director is not able to ascertain the amount of the part which is for a loss of income, the Director may disregard the whole of the payment.

(3C) In determining whether to disregard any payment falling within paragraphs (3) and (3A), the Director may disregard the whole of a payment where there is a direct link between—

(a) the loss or harm suffered by an individual for which the payment has been made; and

(b) the civil legal service the individual has applied for or receives.

(3D) In calculating the disposable income or the gross income of the individual—

(a) subject to sub-paragraph (b), the Director may disregard the whole of a payment where the following conditions are met—

(i) the payment was for personal harm or was for a specified purpose; and

(ii) the payment was not for a loss of income;

(b) where a payment for personal harm or a specified purpose includes, in part, an amount for a loss of income—

(i) where the Director is able to ascertain the amount of the part which is for a loss of income, the Director may disregard only the amount of the part which is not for a loss of income; or

(ii) where the Director is not able to ascertain the amount of the part which is for a loss of income, the Director may disregard the whole of the payment.

(3E) In calculating the disposable income or the gross income of the individual, the Director may disregard the whole of a payment where there is a direct link between—

(a) the loss or harm suffered by an individual for which the payment has been made; and

(b) the civil legal service the individual has applied for or receives.

(3F) The following definitions apply in relation to—

(a) paragraphs (3B) and (3D)—

“loss of income” includes past and future loss of income;

“personal harm” means a non-pecuniary loss or harm caused to an individual;

“specified purpose” means an essential need of an individual and does not include a payment for financial-only loss;

(b) paragraph (3D) and (3E)—

“payment”—

(a)

means any interim or final compensation, damages, insurance or ex gratia payment made to an individual (“A”) for a loss or harm suffered by A; and

(b)

does not include a payment made directly by an individual (“B”) who is known personally to A unless B is wholly or partly responsible (or alleged to be wholly or partly responsible) for the loss or harm suffered by A for which the payment was made,

and in the definition of “payment” mentioned in paragraph (3F)(b) “ex gratia” means a payment for which no legal liability exists.”.

(4) In regulation 39 (amount of interest in dwellings to be disregarded)—

(a) in paragraph (1) for “paragraph (2)” substitute “paragraphs (2) and (3)”;

(b) after paragraph (2) insert—

“(3) Where an individual (“A”) resides in a dwelling other than the main or only dwelling in which A has an interest, the Director must apply paragraph (1) to A’s interest in the main or only dwelling where the following conditions are met—

(a) A’s residence in the other dwelling (which is not the main or only dwelling) is temporary;

(b) A previously resided in the main or only dwelling with another individual (“B”);

(c) A and B are associated with each other;

(d) A no longer resides in the main or only dwelling because—

(i) there has been, or is a risk of, domestic violence between A and B;

(ii) A was, or is at risk of being, the victim of that domestic violence; and

(iii) B continues to reside in the main or only dwelling; and

(e) the Director is satisfied that A intends to return to reside in the main or only dwelling.

(4) For the purposes of paragraph (3), when determining A’s main or only dwelling the Director must exclude the dwelling in which A’s residence is temporary.

(5) In this regulation, “associated” and “domestic violence” have the same meanings as in paragraph 12 of Part 1 of Schedule 1 to the Act(11).”.

(5) In regulation 40 (certain payments to be disregarded)—

(a) in paragraph (1)—

(i) after sub-paragraph (b)(iii) omit “and”;

(ii) in sub-paragraph (f) for “the Caxton Foundation or a Relevant Infected Blood Support Scheme” substitute “the Caxton Foundation, a Relevant Infected Blood Support Scheme, the Infected Blood Interim Compensation Payment Scheme, the Infected Blood Further Interim Compensation Payment Scheme, the Infected Blood Compensation Scheme, or arrangements made by the Secretary of State or the Minister for the Cabinet Office under section 56(1) of the Victims and Prisoners Act 2024”;

(iii) after sub-paragraph (j) insert—

“(k) any payment for historical child abuse;

(l) any Modern Slavery Victim Care Contract or equivalent payment;

(m) any payment of compensation for a miscarriage of justice made under section 133 of the Criminal Justice Act 1988;

(n) any payment of arrears for—

(i) a benefit, allowance, payment, credit, or pension, under a social security enactment; or

(ii) child maintenance,

received by an individual at any time within the period of two years ending with the date on which the individual’s application for a determination in respect of civil legal services is made.”;

(b) in paragraph (2) after “may” insert “, subject to paragraphs (2B) and (2C),”;

(c) in paragraph (2A)—

(i) after “may” insert “, subject to paragraphs (2B) and (2C),”;

(ii) after sub-paragraph (a) omit “and”;

(iii) after sub-paragraph (b) insert—

“(c) any payment of arrears for—

(i) a benefit, allowance, payment, credit, or pension, under a social security enactment; or

(ii) child maintenance,

received by an individual on a date falling more than two years before the date on which the individual’s application for a determination in respect of civil legal services is made;

(d) any payment of compensation made under the Victims of Overseas Terrorism Compensation Scheme 2012.”;

(d) after paragraph (2A) insert—

“(2B) In determining whether to disregard any payment falling within paragraphs (2) and (2A)—

(a) subject to sub-paragraph (b), the Director may disregard the whole of a payment where the following conditions are met—

(i) the payment was for personal harm or was for a specified purpose; and

(ii) the payment was not for a loss of income;

(b) where a payment for personal harm or a specified purpose includes, in part, an amount for a loss of income—

(i) where the Director is able to ascertain the amount of the part which is for a loss of income, the Director may disregard only the amount of the part which is not for a loss of income; or

(ii) where the Director is not able to ascertain the amount of the part which is for a loss of income, the Director may disregard the whole of the payment.

(2C) In determining whether to disregard any payment falling within paragraphs (2) and (2A), the Director may disregard the whole of a payment where there is a direct link between—

(a) the loss or harm suffered by an individual for which the payment has been made; and

(b) the civil legal service the individual has applied for or receives.

(2D) In calculating the disposable capital of the individual—

(a) subject to sub-paragraph (b), the Director may disregard the whole of a payment where the following conditions are met—

(i) the payment was for personal harm or was for a specified purpose; and

(ii) the payment was not for a loss of income;

(b) where a payment for personal harm or a specified purpose includes, in part, an amount for a loss of income—

(i) where the Director is able to ascertain the amount of the part which is for a loss of income, the Director may disregard only the amount of the part which is not for a loss of income; or

(ii) where the Director is not able to ascertain the amount of the part which is for a loss of income, the Director may disregard the whole of the payment.

(2E) In calculating the disposable capital of the individual, the Director may disregard the whole of a payment where there is a direct link between—

(a) the loss or harm suffered by an individual for which the payment has been made; and

(b) the civil legal service the individual has applied for or receives.

(2F) In—

(a) paragraphs (2B) and (2D), “loss of income”; “personal harm”; and “specified purpose” have the same meanings as in regulation 24(3F)(a);

(b) paragraphs (2D) and (2E), “payment” has the same meaning as in regulation 24(3F)(b).”;

(e) for paragraph (3) substitute—

“(3) In this regulation—

(a) “child maintenance” means regular payments an individual receives or is entitled to receive for the maintenance of a child who is a member of that individual’s household;

(b) “fire at Grenfell Tower”; “Grenfell Tower”; and “victim of the fire at Grenfell Tower” have the same meanings as in regulation 24(4).”.

(6) Regulation 42 (discretion to disregard interim payments) is amended as follows—

(a) the existing text of the regulation becomes paragraph (1);

(b) after that paragraph insert—

“(2) For the purposes of this regulation, an interim payment does not include any payment which falls within—

(a) regulation 40(2) and (2A); and

(b) the definition of “payment” in regulation 40(2F)(b).”.

(1)

S.I. 2013/480; relevant amending instruments are S.I. 2013/591, 2015/643, 2015/838, 2016/211, 2016/708, 2017/745, 2019/505, 2019/894, 2020/1584, 2022/1376.

(2)

2024 c. 21.

(3)

2015 c. 30; section 49 was amended by the Nationality and Borders Act 2022 (c. 36), section 60(3) and (4).

(4)

2015 c. 2 (N.I.); section 18 was amended by the Justice (Sexual Offences and Trafficking Victims) Act (Northern Ireland) 2022 (c. 19 (N.I.)), section 21(3).

(5)

2015 asp 12.

(6)

2019 c. 31 (N.I.).

(7)

2021 asp 15. See section 2 for the definition of “redress scheme”.

(8)

2010 c. 17.

(9)

2024 c. 21.

(10)

1988 c. 33; Section 133 in relation to England and Wales and Northern Ireland was amended by paragraph 16(4) of Schedule 2 and Schedule 3 to the Criminal Appeal Act 1995 (c. 35); section 7(8) of the Terrorism Act 2000 (c. 11); section 12(8) of the Prevention of Terrorism Act 2005 (c. 2); paragraph 1 of Schedule 11 to the Constitutional Reform Act 2005 (c. 4); paragraph 6(1) of the Schedule to the Criminal Proceedings etc (Reform) Scotland Act 2007 (asp 6); section 61(3) to (6) of the Criminal Justice and Immigration Act 2008 (c. 4); paragraph 3 of Schedule 7 to the Terrorism Prevention and Investigation Measures Act 2011 (c. 23); section 175(1) of the Anti-social Behaviour, Crime and Policing Act 2014 (c. 12); section 15(2) of the Counter-Terrorism and Security Act 2015 (c. 6); paragraph 2(1) of Schedule 6 to S.I. 2010/976; and paragraph 8 of the Schedule to S.I. 2023/1386; and in relation to Scotland by section 28, paragraph 16(4) of Schedule 2, and Schedule 3 to the Criminal Appeal Act 1995 (c. 35); section 7(8) of the Terrorism Act 2000 (c. 11); section 12(8) of the Prevention of Terrorism Act 2005 (c. 2); paragraph 6(1) of the Schedule to the Criminal Proceedings etc (Reform) Scotland Act 2007 (asp 6); section 113(1) of the Criminal Justice and Licensing (Scotland) Act 2010 (asp 13); paragraph 3 of Schedule 7 to the Terrorism Prevention and Investigation Measures Act 2011 (c. 23); section 15(2) of the Counter-Terrorism and Security Act 2015 (c. 6); and paragraph 8 of the Schedule to S.I. 2023/1386.

(11)

2012 c. 10; paragraph 12 of Part 1 of Schedule 1 was amended by article 4(1) of S.I. 2013/748; Schedule 1, paragraph 15 of S.I. 2018/1413; section 9(12)(a) of the Children and Families Act 2014 (c. 6).