The Civil Legal Services (Financial) Regulations (Northern Ireland) 2015

PART 2 N.I. DETERMINATIONS IN RESPECT OF AN INDIVIDUAL'S FINANCIAL RESOURCES

CHAPTER 1 N.I. FINANCIAL ELIGIBILITY LIMITS AND WAIVERS

Determination in respect of an individual's financial resources N.I.

3.—(1) This Part applies for the purposes of determining whether an individual qualifies for civil legal services under Part 2 of the Order in accordance with Article 13(1).

(2) Subject to regulations 4 and 5, the assessing authority must determine whether the individual's financial resources are such that the individual is eligible for civil legal services in accordance with these Regulations.

Exceptions from requirement to make a determination in respect of an individual's financial resources N.I.

4.—(1) The following services shall be available without reference to the client's financial resources—

(a) services consisting of such amount of advice and assistance as is authorised under a contract to be provided without reference to the client's financial resources;

(b) advice and assistance applied for by—

(i) a parent of a child, or a person with parental responsibility for a child within the meaning of the 1995 Order, in respect of whom a Health and Social Care Trust has given notice of potential proceedings under Article 50 of that Order, or

(ii) in the case of an unborn child in respect of whom a Health and Social Care Trust has given notice of potential proceedings under Article 50 of the 1995 Order, any person who, following birth of the child—

(aa) will be the parent of the child, and

(bb) will have parental responsibility for the child within the meaning of that Order;

[F1 (c) advice and assistance in potential proceedings or representation in proceedings or potential proceedings before the Review Tribunal under—

(i) the Mental Health (Northern Ireland) Order 1986M1 ; or

(ii) sections 45, 47 or 48 of the Mental Capacity Act (Northern Ireland) 2016 in relation to an authorisation of detention amounting to a deprivation of liberty;

where the client’s case or application to the Tribunal is, or is to be, the subject of the proceedings;

(ca) advice and assistance in potential proceedings or representation in proceedings or potential proceedings before the Review Tribunal under the Mental Capacity Act (Northern Ireland) 2016 under—

(i) Section 80 where the client is the person to whom the application relates; and

(ii) Section 83(2) where the client’s case or application to the Tribunal is, or is to be, subject of the proceedings;]

(d) representation in proceedings under the 1995 Order, applied for by or on behalf of—

(i) a child in respect of whom an application is made for an order under—

(aa) Article 50 (a care or supervision order);

(bb) Article 62 (a child assessment order);

(cc) Article 63 (an emergency protection order); or

(dd) Article 64 (extension or discharge of an emergency protection order);

(ii) a parent of such a child, or a person with parental responsibility for such a child within the meaning of the 1995 Order; or

(iii) a child who is brought before a court under Article 44 (secure accommodation) who is not, but wishes to be, legally represented before the court;

(e) representation in proceedings relating to an appeal against an order made under Article 50 of the 1995 Order, applied for by or on behalf of a person who has been granted representation by virtue of sub-paragraph (d);

(f) representation (higher courts) in proceedings under the Adoption (Northern Ireland) Order 1987 M2 applied for by or on behalf of—

(i) a child in respect of whom an application is made for an order under—

(aa) Article 17 (freeing child for adoption with parental agreement); or

(bb) Article 18 (freeing child for adoption without parental agreement); or

(ii) a parent of such a child, or a person with parental responsibility for such a child within the meaning of the 1995 Order;

(g) representation by a solicitor in Northern Ireland of a person whose application under the Hague Convention or the European Convention has been submitted to the Central Authority in Northern Ireland under section 3(2) or 14(2) of the Child Abduction and Custody Act 1985 M3 ;

(h) representation of a person who—

(i) appeals to a magistrates' court against the registration of, or the refusal to register, a maintenance order made in a Hague Convention country under the Maintenance Orders (Reciprocal Enforcement) Act 1972 M4 ;

(ii) applies for the registration of a judgment under section 4 of the Civil Jurisdiction and Judgments Act 1982 M5 ;

(iii) applies for the registration of a judgment under Council Regulation (EC) No. 44/2001 of 22nd December 2000 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters; or

(iv) applies for either the registration of or the registration and enforcement of a judgment under Council Regulation (EC) No. 2201/2003 of 27th November 2003 on jurisdiction and the recognition and enforcement of judgments in matrimonial matters and the matters of parental responsibility,

and who benefited from complete or partial assistance with, or exemption from, costs or expenses in the country in which the maintenance order was made or the judgment was given;

(i) such services as are funded through grants under Article 12(2)(c) of the Order, except where the terms of the grant provide otherwise;

(j) civil legal services to the extent that the services consist of—

(i) advice and assistance or representation for an individual who is the subject of an application for permission under section 6 of the 2011 Act, in respect of such an application;

(ii) advice and assistance in connection with a TPIM notice for an individual who is subject to that notice;

(iii) advice and assistance for an individual who is subject to a TPIM notice, in respect of an application—

(aa) to vary measures specified in that notice under section 12(2) of the 2011 Act;

(bb) for revocation of that notice in accordance with section 13(3) of the 2011 Act;

(cc) for permission under Schedule 1 to the 2011 Act; or

(iv) representation in respect of TPIM proceedings for an individual who is subject to a TPIM notice;

(k) advice and assistance in the circumstances provided for in paragraph (2) [F2 ;]

[F3 (l) representation of a client who is the subject of proceedings under Article 44 or 45 of the Police and Criminal Evidence (Northern Ireland) Order 1989;

(m) representation of a client who is the subject of proceedings under paragraph 29 or 36 of Schedule 8 to the Terrorism 2000 Act.]

(2) Funded services may be provided where a client—

(a) is arrested and held in custody at a police station or other premises;

[F4 (aa) is detained under Schedule 7 to the Terrorism Act 2000 or under Part 1 of Schedule 3 to the Counter-Terrorism and Border Security Act 2019;]

(b) is being interviewed in connection with a serious service offence; or

(c) is a volunteer,

and seeks advice and assistance from a solicitor.

(3) In this regulation—

“the 1995 Order” means the Children (Northern Ireland) Order 1995 M6 ;

“the 2011 Act” means the Terrorism Prevention and Investigation Measures Act 2011 M7 ;

“Central Authority” has the same meaning as in sections 3 and 14 of the Child Abduction and Custody Act 1985;

“European Convention” means the convention defined in section 12(1) of the Child Abduction and Custody Act 1985;

“Hague Convention” means the convention defined in section 1(1) of the Child Abduction and Custody Act 1985;

“Hague Convention country” has the same meaning as in the Reciprocal Enforcement of Maintenance Orders (Hague Convention Countries) Order 1993 M8 ;

“the Maintenance Orders (Reciprocal Enforcement) Act 1972” means that Act as applied with such exceptions, adaptations and modifications as are specified in the Reciprocal Enforcement of Maintenance Orders (Hague Convention Countries) Order 1993;

“serious service offence” means any offence under the Army Act 1955 M9 , the Air Force Act 1955 M10 or the Naval Discipline Act 1957 M11 which cannot be dealt with summarily or which appears to an interviewing service policeman to be serious;

“a TPIM notice” means a notice under section 2(1) of the 2011 Act;

“TPIM proceedings” are the proceedings listed at (b) to (g) of the definition of “TPIM proceedings” given in section 30(1) of the 2011 Act;

“volunteer” means an individual who, for the purpose of assisting with an investigation, attends voluntarily at a police station or at any other place where a constable is present or accompanies a constable to a police station or any such other place without having been arrested.

Textual Amendments

F1 Reg. 4(1)(c)(ca) substituted for reg. 4(1)(c) (2.12.2019) by The Civil Legal Services (Financial) (Amendment No. 2) Regulations (Northern Ireland) 2019 (S.R. 2019/203), regs. 1, 3

F2 Word in reg. 4(1)(k) substituted (11.10.2016) by The Civil Legal Services (Financial) (Amendment) Regulations (Northern Ireland) 2016 (S.R. 2016/338), regs. 1, 3

F3 Reg. 4(1)(l)(m) inserted (11.10.2016) by The Civil Legal Services (Financial) (Amendment) Regulations (Northern Ireland) 2016 (S.R. 2016/338), regs. 1, 4

F4 Reg. 4(2)(aa) inserted (13.8.2020) by Counter-Terrorism and Border Security Act 2019 (c. 3), s. 27(2)(d), Sch. 4 para. 31(1) (with Sch. 4 para. 31(2)); S.I. 2020/792, reg. 2(i)

Marginal Citations

M1 S.I. 1986/595 (N.I. 4)

M2 S.I. 1987/2203 (N.I. 22)

M3 1985 c. 60

M4 1972 c. 18

M5 1982 c. 27

M6 S.I. 1995/755 (N.I. 2)

M7 2011 c. 23

M8 S.I. 1993/593

M9 1955 c. 18

M10 1955 c. 19

M11 1957 c. 53

Individuals in receipt of certain benefits, allowances etc. N.I.

5.—(1) Where the assessing authority is satisfied that the client is in receipt, directly or indirectly, of—

(a) income support paid under section 123 of the Social Security Contributions and Benefits (Northern Ireland) Act 1992 M12 ;

(b) income-based jobseeker's allowance paid under Part 2 of the Jobseekers (Northern Ireland) Order 1995 M13 ;

(c) income-related employment and support allowance paid under Part 1 of the Welfare Reform Act (Northern Ireland) 2007 M14 ; F5 ...

(d) the guarantee credit element of state pension credit paid under section 1(3)(a) of the State Pension Credit Act (Northern Ireland) 2002 M15 , [F6 or]

[F7 (e) or universal credit paid under Part 2 of the Welfare Reform (Northern Ireland) Order 2015.]

the client shall, subject to paragraph (2), be eligible for all forms of civil legal services without making (where applicable) any contribution.

(2) In respect of capital, the client's eligibility for advice and assistance is subject to regulation 6(2), and for representation (lower courts) it is subject to regulation 6(3).

Textual Amendments

F5 Word in reg. 5(1)(c) omitted (coming into force in accordance with reg. 1(1) of the amending Rule) by virtue of The Universal Credit (Consequential, Supplementary, Incidental and Miscellaneous Provisions) Regulations (Northern Ireland) 2016 (S.R. 2016/236), regs. 1(1), 61(2)(a)

F6 Word in reg. 5(1)(d) inserted (coming into force in accordance with reg. 1(1) of the amending Rule) by The Universal Credit (Consequential, Supplementary, Incidental and Miscellaneous Provisions) Regulations (Northern Ireland) 2016 (S.R. 2016/236), regs. 1(1), 61(2)(b)

F7 Reg. 5(1)(e) inserted (coming into force in accordance with reg. 1(1) of the amending Rule) by The Universal Credit (Consequential, Supplementary, Incidental and Miscellaneous Provisions) Regulations (Northern Ireland) 2016 (S.R. 2016/236), regs. 1(1), 61(2)(c)

Marginal Citations

M12 1992 c. 7

M13 S.I. 1995/2705 (N.I. 15)

M14 2007 c. 2 (N.I.)

M15 2002 c. 14 (N.I.)

Financial eligibility limits – disposable income and disposable capital N.I.

6.—(1) This regulation has effect subject to regulations 4 and 5.

(2) Where a client's weekly disposable income does not exceed £234 and their disposable capital does not exceed £1,000, they shall be eligible for advice and assistance.

(3) Where a client's weekly disposable income does not exceed £234 and their disposable capital does not exceed £3,000, they shall be eligible for representation (lower courts).

(4) Subject to paragraph (5), a client shall be eligible for representation (higher courts) where their yearly disposable income does not exceed—

(a) £10,955, if the representation is sought in connection with taking, defending or being a party to proceedings which include a claim in respect of personal injuries; or

(b) £9,937, in any other case.

(5) The client shall be refused representation (higher courts) where—

(a) their disposable capital exceeds—

(i) £8,560, if the representation is sought in connection with taking, defending or being a party to proceedings which include a claim in respect of personal injuries; or

(ii) £6,750, in any other case; and

(b) it appears they can afford to proceed without representation (higher courts) in accordance with regulation 13(2).

Waiver of eligibility limits and contributions in multi-party actions of significant wider public interest N.I.

7.—(1) Where an application is made for representation in a multi-party action which the Director considers has a significant wider public interest, the Director may, if the Director considers it equitable to do so, do one or both of the following—

(a) disapply the eligibility limits in regulation 6 in respect of those services in relation to specific issues within the multi-party action; and

(b) waive all or part of any contribution payable under Part 3.

(2) In this regulation—

“multi-party action” means any action or actions, in which a number of clients have causes of action, which involve common issues of fact or law arising out of the same cause or event;

“wider public interest” means the potential of proceedings to produce real benefits for individuals other than the client (other than any general benefits which normally flow from proceedings of the type in question).

Waiver of eligibility limits and contributions in certain inquests N.I.

8.—(1) Where an application is made for a relevant determination, the Director may, if the Director considers it equitable to do so, do one or both of the following—

(a) disapply the eligibility limits in regulation 6 in respect of the application; and

(b) waive all or part of any contribution payable under Part 3.

(2) In considering whether to disapply the eligibility limits under paragraph (1), the Director must have regard in particular to any applicable rights under Article 2 of the Human Rights Convention.

(3) In this regulation—

“the Human Rights Convention” has the meaning given to “the Convention” by section 21(1) of the Human Rights Act 1998 M16 ; and

“relevant determination” is a determination under—

(a)

Article 12A(2)(a) of the Order; or

(b)

Article 12A(4)(c) of the Order, to the extent that it relates to services consisting of representation in proceedings at an inquest under the Coroners (Northern Ireland) Act 1959 M17 into the death of a member of the family of the individual who has made the application.

Marginal Citations

M16 1998 c. 42

M17 1959 c. 15 (N.I.)

Waiver of eligibility limits and contributions in cross-border disputes N.I.

9.—(1) This regulation applies to an application by a client domiciled or habitually resident in another Member State for the funding of services in relation to a cross-border dispute.

(2) Where this regulation applies, the [F8 Department] must—

(a) disapply the relevant eligibility limits in regulation 6 if the client proves that they are unable to pay the cost of proceedings in Northern Ireland in relation to the dispute as a result of differences in the cost of living between the client's Member State of domicile or habitual residence and Northern Ireland; and

(b) waive all or part of any contribution payable under Part 3, if and to such extent as the client proves that they are unable to pay the contribution as a result of such differences in the cost of living.

(3) In this regulation—

“cross-border dispute” means a dispute where a client is domiciled or habitually resident in a Member State other than the Member State where the court is sitting or where the decision is to be enforced;

“Member State” means a member state of the European Union except Denmark.

(4) For the purposes of this regulation the Member State in which a client is domiciled shall be determined in accordance with Article 59 of Council Regulation (EC) No. 44/2001 of 22nd December 2000 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters, as amended from time to time and as applied by the Agreement made on 19th October 2005 between the European Community and the Kingdom of Denmark on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters.

Textual Amendments

F8 Word in reg. 9(2) substituted (11.10.2016) by The Civil Legal Services (Financial) (Amendment) Regulations (Northern Ireland) 2016 (S.R. 2016/338), regs. 1, 5

Waiver of eligibility limits in proceedings relating to domestic violence or forced marriage N.I.

10.—(1) This regulation applies to an application by a client for the funding of—

(a) representation (lower courts) in proceedings for, or in relation to, a non-molestation order under Article 20 of the Family Homes and Domestic Violence (Northern Ireland) Order 1998 M18 made by the individual applying for the order or on whose application the order is made; and

(b) advice and assistance or representation (higher courts) in proceedings for a forced marriage protection order under the Forced Marriage (Civil Protection) Act 2007 M19 .

(2) Where this regulation applies the Director may, if the Director considers it equitable to do so, disapply the eligibility limits in regulation 6.

(3) In such applications—

(a) where the weekly disposable income of the client exceeds £234, the contribution payable shall be the excess plus £134; and

(b) where the disposable capital of the client exceeds £3,000, the contribution payable shall be £100.

(4) The contribution payable by a client under paragraph (3) may be in respect of disposable income or disposable capital, or in respect of both.

Marginal Citations

M18 S.I. 1998/1071 (N.I. 6)

M19 2007 c. 20

CHAPTER 2 N.I. MAKING A DETERMINATION IN RESPECT OF AN INDIVIDUAL'S FINANCIAL RESOURCES

Provision of information N.I.

11.  Where an application, or a further assessment under regulation 21, is made, the client must provide the assessing authority with the information necessary to enable the authority to—

(a) determine whether they satisfy the conditions set out in regulation 5; and

(b) calculate, where relevant, their disposable income and disposable capital and those of any other person concerned.

Calculations N.I.

12.—(1) The assessing authority shall, subject to regulation 5—

(a) calculate the disposable income and disposable capital of the person concerned in accordance with Chapters 3 to 5, as applicable;

(b) calculate any contribution payable in accordance with Part 3; and

(c) where the application is for representation (higher courts), call attention to any special circumstances affecting the manner in which any contribution is to be made under Part 3.

(2) When calculating disposable income for the purposes of regulation 6(2) or (3), the period of calculation shall be one week and, for this purpose, “income” means the total income from all sources which the person concerned received or became entitled to during or in respect of the seven days up to and including the date of their application.

(3) When calculating disposable income for the purposes of regulation 6(4), the period of calculation shall be the period of 12 months next ensuing from the date of the application for a certificate, or such other period of 12 months as the assessing authority may consider to be appropriate in the circumstances of the case.

(4) Where the assessing authority calculates that a client has disposable income or disposable capital of an amount which makes the client ineligible to receive funded services—

(a) the supplier, in respect of advice and assistance or representation (lower courts);

(b) the Director, in respect of representation (higher courts), and subject to regulation 13,

shall refuse the application.

Over-capital cases N.I.

13.—(1) This regulation applies where the application is for representation (higher courts) and the assessing authority has determined the client concerned, having a disposable income which makes that service available to the client, has a disposable capital exceeding the amount prescribed in regulation 6(5).

(2) The Director may approve the application where the Director estimates that the costs which might reasonably be incurred by the client in taking, defending or being a party to any proceedings in respect of which the application was made would exceed the maximum contribution payable by the client under Part 3.

Assessment of resources prior to provision of services N.I.

14.  The supplier shall not provide any funded services to the client prior to the assessment of resources in accordance with regulations 12 and 13.

Guidance given by the Department N.I.

15.  Where the assessing authority is the supplier, in deciding any question under these Regulations the supplier must have regard to any guidance which may from time to time be given by the Department as to the application of the Regulations.

Application in representative, fiduciary or official capacity N.I.

16.  Where the client is acting only in a representative, fiduciary or official capacity, the assessing authority shall, in calculating their disposable income and disposable capital, and the amount of any contribution to be made—

(a) assess the value of any property or estate or the amount of any fund out of which the client is entitled to be indemnified, and the disposable income and disposable capital and maximum contribution of any persons (including the client if appropriate) who might benefit from the outcome of the proceedings; and

(b) unless the authority considers that the client might benefit from the proceedings, disregard their personal resources.

Resources of other persons N.I.

17.—(1) Subject to paragraph (2), in calculating the disposable income and disposable capital of the client, the resources of their partner shall be treated as the client's resources.

(2) The resources of the client's partner shall not be treated as the client's resources if their partner has a contrary interest in—

(a) the matter in respect of which the client is seeking advice and assistance, or

(b) the dispute in respect of which the application is made.

(3) Paragraph (4) applies where an application is made for advice and assistance or representation (lower courts).

(4) Where the client is a child the resources of a parent, guardian or any other person who is responsible for maintaining the child, or who usually contributes substantially to the child's maintenance, shall be treated as the child's resources, unless having regard to all the circumstances, including the age and resources of the child and any conflict of interest, it appears inequitable to do so.

Deprivation or conversion of resources N.I.

18.—(1) Paragraph (2) applies where the client applies for advice and assistance or representation (lower courts).

(2) If it appears to the assessing authority that the person concerned has, with intent to reduce the amount of their disposable income or disposable capital, whether for the purpose of making the client eligible to receive funded services, reducing their liability to pay a contribution or otherwise—

(a) directly or indirectly deprived themselves of any resources, or

(b) converted any part of their resources into resources which under these Regulations are to be wholly or partly disregarded,

those resources shall be treated as part of their resources, or as not so converted, as the case may be.

(3) Paragraph (4) applies where the client applies for representation (higher courts).

(4) If it appears to the assessing authority that the person concerned has, with intent to reduce the amount of their disposable income or disposable capital, whether for the purpose of making the client eligible to receive funded services, reducing their liability to pay a contribution or otherwise—

(a) directly or indirectly deprived themselves of any resources,

(b) transferred any resources to another person, or

(c) converted any part of their resources into resources which under these Regulations are to be wholly or partly disregarded,

those resources shall be treated as part of their resources, or as not so converted, as the case may be.

Duty to report change in financial circumstances N.I.

19.—(1) This regulation applies where the client applies for representation (higher courts).

(2) The client must immediately inform the Department of any change in their financial circumstances (or those of any person whose resources are to be treated as the client's resources under regulation 17)—

(a) of which the client is, or should reasonably be, aware;

(b) which has occurred since any assessment of their resources; and

(c) which might affect the terms on which the client was assessed as eligible to receive funded services.

Amendment of assessment due to error or receipt of new information N.I.

20.—(1) Paragraph (2) applies where the client applies for advice and assistance or representation (lower courts).

(2) Where it appears to the supplier that there has been some error or mistake in the determination of the disposable income, disposable capital or maximum contribution of the person concerned, the supplier may redetermine the disposable income or disposable capital or maximum contribution or, as the case may be, amend the determination and in the latter case the amended determination shall for all purposes be substituted for the original determination.

(3) Paragraph (4) applies where the client applies for representation (higher courts).

(4) Where—

(a) it appears to the assessing authority that there has been an error in the assessment of the resources of the person concerned or the amount of any contribution payable, or in any calculation or estimate upon which such assessment was based; or

(b) new information which is relevant to the assessment has come to light,

the assessing authority mayF9 ... make an amended assessment, and may take such steps as appear equitable to give effect to the amended assessment in relation to any period during which funded services have already been provided.

Textual Amendments

F9 Words in reg. 20(4) omitted (4.3.2019) by virtue of The Civil Legal Services (Financial) (Amendment) Regulations (Northern Ireland) 2019 (S.R. 2019/14), regs. 1, 4

Further assessments N.I.

21.—(1) This regulation applies where the client applies for representation (higher courts).

(2) Where the eligibility of the client was assessed under regulation 6 and it appears that the circumstances of the person concerned may have altered so that—

(a) their normal disposable income may have increased by an amount greater than £750 or decreased by an amount greater than £300, or

(b) their disposable capital may have increased by an amount greater than £750,

the assessing authority shall, F10 ... subject to paragraph (8), make a further assessment of that person's resources, and the contribution (if any) payable, in accordance with these Regulations.

(3) Where—

(a) the client was assessed as being eligible for funded services under regulation 5, and

(b) it appears to the assessing authority that the client is no longer in receipt, directly or indirectly, of a benefit or allowance referred to in that regulation,

the assessing authority shall, F11 ... subject to paragraph (8), make a further assessment of that person's resources, and the contribution (if any) payable, in accordance with these Regulations.

(4) For the purposes of the further assessment, the period of calculation shall be the period of one year following the date of the change of circumstances or such other period of one year as the assessing authority considers to be appropriate.

(5) Where a further assessment is made, the amount or value of every resource of a capital nature acquired since the date of the original application shall be ascertained as on the date of the request by the Director.

(6) Any capital contribution which becomes payable as a result of a further assessment shall be payable in respect of the cost of the funded services, including costs already incurred.

(7) Where a certificate is discharged under regulation 22(4)(b) of the General Regulations as a result of a further assessment of capital, the Director may require a contribution to be paid in respect of costs already incurred.

(8) The Director may decide not to [F12 make] a further assessment under paragraph (2) or (3) if the Director considers such a further assessment inappropriate, having regard in particular to the period during which funded services are likely to continue to be provided to the client.

Textual Amendments

F10 Words in reg. 21(2) omitted (4.3.2019) by virtue of The Civil Legal Services (Financial) (Amendment) Regulations (Northern Ireland) 2019 (S.R. 2019/14), regs. 1, 5(a)

F11 Words in reg. 21(3) omitted (4.3.2019) by virtue of The Civil Legal Services (Financial) (Amendment) Regulations (Northern Ireland) 2019 (S.R. 2019/14), regs. 1, 5(b)

F12 Word in reg. 21(8) substituted (4.3.2019) by The Civil Legal Services (Financial) (Amendment) Regulations (Northern Ireland) 2019 (S.R. 2019/14), regs. 1, 5(c)

CHAPTER 3 N.I. CALCULATION OF INCOME AND CAPITAL – ADVICE AND ASSISTANCE AND REPRESENTATION (LOWER COURTS)

Application of regulations 23 to 32 N.I.

22.  Regulations 23 to 32 apply only for the purposes of determining the client's eligibility for—

(a) advice and assistance; and

(b) representation (lower courts).

Calculation of income and capital N.I.

23.  The disposable income and disposable capital of the person concerned shall be the income and capital as determined by the supplier after deducting any sums which are to be left out of account or for which an allowance is to be made under the provisions of this Chapter.

Disregard of financial resources which are the subject matter of any claim N.I.

24.  In calculating the income and capital of the person concerned, there shall be left out of account the value of the subject matter of any claim in respect of which the client is seeking advice and assistance or representation (lower courts).

Disregards from income – certain welfare and other allowances, payments etc. N.I.

25.  In calculating the disposable income of the person concerned, the following payments shall be disregarded—

(a) disability living allowance paid under section 71 of the Social Security Contributions and Benefits (Northern Ireland) Act 1992 (“the 1992 Act”) M20 ;

[F13 (aa) personal independence payment paid under Part 5 of the Welfare Reform (Northern Ireland) Order 2015;]

(b) attendance allowance paid under section 64 of, or paragraph 4(2)(b) of Schedule 8 to, the 1992 Act;

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

(d) any payment made out of the social fund under Part 8 of the 1992 Act;

(e) carer's allowance paid under section 70 of the 1992 Act;

(f) any direct payment made under regulations made under section 8(1) of the Carers and Direct Payments Act (Northern Ireland) 2002 M21 ;

(g) any extra-statutory job grant paid by the Department for Social Development;

(h) severe disablement allowance paid under section 68 of the 1992 Act;

(i) exceptionally severe disablement allowance paid under Article 15 of the Personal Injuries (Civilian) Scheme 1983 M22 ;

(j) any pensions paid under the Naval, Military and Air Forces Etc. (Disablement and Death) Service Pensions Order 2006 M23 ;

(k) any armed forces independence payment made under the Armed Forces and Reserve Forces (Compensation Scheme) Order 2011 M24 ;

(l) to the extent that it exceeds the relevant figure referred to in regulation 27(1)(b), any financial support paid under any agreement for the care of a foster child;

(m) any payment made out of the Independent Living Fund (2006).

Textual Amendments

F13 Reg. 25(aa) inserted (20.6.2016) by The Personal Independence Payment (Supplementary Provisions and Consequential Amendments) Regulations (Northern Ireland) 2016 (S.R. 2016/228), regs. 1, 40(2)

Marginal Citations

M20 1992 c. 7

M21 2002 c. 6 (N.I.)

M22 S.I. 1983/686

M23 S.I. 2006/606

M24 S.I. 2011/517

Deductions from income – income tax and national insurance contributions N.I.

26.  In calculating the disposable income of the person concerned, the following payments shall be deducted—

(a) any income tax paid or payable on income treated under the provisions of this Chapter as their income;

(b) contributions estimated to have been paid under Part 1 of the Social Security Contributions and Benefits (Northern Ireland) Act 1992 or any scheme made under that Act during or in respect of the seven days up to and including the date of the application for advice and assistance or representation (lower courts).

Deductions from income – maintenance of partner and dependants N.I.

27.—(1) In calculating the disposable income of the person concerned there shall be a deduction at or equivalent to the following rates, as they applied at the beginning of the period of calculation referred to in regulation 12(2)—

(a) in respect of the maintenance of their partner, the difference between the income support allowance for a couple both aged not less than 18 (which is specified in column 2 of paragraph 1(3)(d) of Part I of the Schedule) and the allowance for a single person aged not less than 25 (which is specified in column 2 of paragraph 1(1)(e) of that Part of the Schedule); and

(b) in respect of the maintenance of any dependant child or dependant relative, where such persons are members of their household—

(i) in the case of a dependant child or a dependant relative aged 18 or under, at a rate equivalent to the amount specified for the time being in paragraph 2 of Part 1 of the Schedule appropriate to the age of the child or relative; and

(ii) in the case of a dependant child or a dependant relative aged 19 or over, at a rate equivalent to the amount which would have been specified for the time being in accordance with head (i) immediately before they attained the age of 19.

(2) For the purposes of this regulation, “the Schedule” means Schedule 2 to the Income Support (General) Regulations (Northern Ireland) 1987 M25 .

Marginal Citations

M25 S.R. 1987 No. 459

Deductions from income – maintenance of former partner and dependants outside the household N.I.

28.  In calculating the disposable income of the person concerned, where that person is making and, throughout such period as the supplier considers adequate, has regularly made payments for the maintenance of—

(a) a former partner;

(b) a child; or

(c) a relative,

who is not a member of the household of the person concerned, a reasonable amount shall be deducted in respect of such payments.

Main dwelling, household furniture and effects, personal clothing, and tools and equipment N.I.

29.  In calculating the disposable capital of the person concerned—

(a) there shall be left out of account the value of the main or only dwelling in which that person resides and the value of their household furniture and effects, their articles of personal clothing, and the tools and equipment of their trade;

(b) where the person concerned resides in more than one dwelling in which they have an interest, there shall be taken into account in respect of the value to them of any interest in a dwelling which is not the main dwelling any sum which may be obtained by borrowing money on the security thereof.

Disregard from capital – income support [F14 or universal credit] N.I.

30.—(1) This regulation applies where the client is seeking representation (lower courts).

(2) In calculating the disposable capital of the person concerned, where that person is (directly or indirectly) in receipt of income support [F15 or universal credit] , there shall be left out of account any sum which for the time being exceeds the sum specified in regulation 6(3).

Textual Amendments

F14 Words in reg. 30 heading inserted (coming into force in accordance with reg. 1(1) of the amending Rule) by The Universal Credit (Consequential, Supplementary, Incidental and Miscellaneous Provisions) Regulations (Northern Ireland) 2016 (S.R. 2016/236), regs. 1(1), 61(3)(a)

F15 Words in reg. 30(2) inserted (coming into force in accordance with reg. 1(1) of the amending Rule) by The Universal Credit (Consequential, Supplementary, Incidental and Miscellaneous Provisions) Regulations (Northern Ireland) 2016 (S.R. 2016/236), regs. 1(1), 61(3)(b)

Disregard from capital – arrears of payments N.I.

31.  In calculating the disposable capital of the person concerned, there shall be left out of account any arrears of direct payments made under regulations made under section 8(1) of the Carers and Direct Payments Act (Northern Ireland) 2002.

Deductions from capital – maintenance of partner and dependants N.I.

32.  In calculating the capital of the person concerned, where that person has living with them one or more of the following persons—

(a) a partner whose resources are required to be aggregated with theirs under regulation 17;

(b) a dependant child; or

(c) a dependant relative wholly or substantially maintained by them,

a deduction shall be made of £335 in respect of the first person, £200 in respect of the second person and £100 in respect of each further person.

CHAPTER 4 N.I. CALCULATION OF INCOME – REPRESENTATION (HIGHER COURTS)

Application of regulations 34 to 43 N.I.

33.  Regulations 34 to 43 apply only for the purposes of determining the client's disposable income in relation to eligibility for representation (higher courts).

Calculation of income N.I.

34.—(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 calculation, but in calculating such income the assessing authority may have regard to their average income during such other period as it considers appropriate.

(2) For the purposes of this regulation, “the period of calculation” has the meaning given in regulation 12(3).

Disregard of financial resources which are the subject matter of the dispute N.I.

35.  In calculating the disposable income of the person concerned, the amount or value of the subject matter of the dispute to which the application relates shall be disregarded.

Disregard of certain welfare and other allowances, payments etc. N.I.

36.  In calculating the disposable income of the person concerned, the following payments shall be disregarded—

(a) disability living allowance paid under section 71 of the Social Security Contributions and Benefits (Northern Ireland) Act 1992 (“the 1992 Act”) M26 ;

[F16 (aa) personal independence payment paid under Part 5 of the Welfare Reform (Northern Ireland) Order 2015;]

(b) attendance allowance paid under section 64 of, or paragraph 4(2)(b) of Schedule 8 to, the 1992 Act;

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

(d) any payment made out of the social fund under Part 8 of the 1992 Act;

(e) carer's allowance paid under section 70 of the 1992 Act;

(f) any direct payment made under regulations made under section 8(1) of the Carers and Direct Payments Act (Northern Ireland) 2002 M27 ;

(g) any extra-statutory job grant paid by the Department for Social Development;

(h) severe disablement allowance paid under section 68 of the 1992 Act;

(i) exceptionally severe disablement allowance paid under Article 15 of the Personal Injuries (Civilian) Scheme 1983 M28 ;

(j) any pensions paid under the Naval, Military and Air Force Etc. (Disablement and Death) Service Pensions Order 2006 M29 ;

(k) any armed forces independence payment made under the Armed Forces and Reserve Forces (Compensation Scheme) Order 2011 M30 ;

(l) to the extent that it exceeds the relevant figure referred to in regulation 39(1)(b), any financial support paid under any agreement for the care of a foster child;

(m) any payment made out of the Independent Living Fund (2006).

Textual Amendments

F16 Reg. 36(aa) inserted (20.6.2016) by The Personal Independence Payment (Supplementary Provisions and Consequential Amendments) Regulations (Northern Ireland) 2016 (S.R. 2016/228), regs. 1, 40(3)

Marginal Citations

M26 1992 c. 7

M27 2002 c. 6 (N.I.)

M28 S.I. 1983/686

M29 S.I. 2006/606

M30 S.I. 2011/517

Income from a trade, business or gainful occupation, other than wage or salary N.I.

37.—(1) The income from a trade, business or gainful occupation other than an occupation at a wage or salary shall be deemed to be whichever of the following the assessing authority considers more appropriate and practicable—

(a) the profits which have accrued or will accrue to the person concerned in respect of the period of calculation referred to in regulation 12(3); or

(b) the drawings of the person concerned.

(2) In calculating the profits under paragraph (1)(a)—

(a) the assessing authority may have regard to the profits of the last accounting period of such trade, business or gainful occupation for which accounts have been prepared; and

(b) there shall be deducted all sums necessarily expended to earn those profits, but no deduction shall be made in respect of the living expenses of the person concerned or any member of their family or household, except in so far as that person is wholly or mainly employed in that trade or business and such living expenses form part of their remuneration.

Deductions – income tax and national insurance contributions N.I.

38.—(1) In calculating the disposable income of the person concerned, any income tax and national insurance contributions paid, or payable, on that income in respect of the period of calculation referred to in regulation 12(3) shall be deducted.

(2) For the purposes of this regulation, “national insurance contributions” means contributions under Part 1 of the Social Security Contributions and Benefits (Northern Ireland) Act 1992.

Deductions – maintenance of partner and dependants N.I.

39.—(1) Subject to paragraph (2), in calculating the disposable income of the person concerned there shall be a deduction at or equivalent to the following rates, as they applied at the beginning of the period of calculation referred to in regulation 12(3)—

(a) in respect of the maintenance of their partner, the difference between the income support allowance for a couple both aged not less than 18 (which is specified in column 2 of paragraph 1(3)(d) of Part 1 of the Schedule) and the allowance for a single person aged not less than 25 (which is specified in column 2 of paragraph 1(1)(e) of that Part of the Schedule); and

(b) in respect of the maintenance of any dependant child or dependant relative, where such persons are members of their household—

(i) in the case of a dependant child or a dependant relative aged 18 or under, at a rate equivalent to the amount specified for the time being in paragraph 2 of Part 1 of the Schedule appropriate to the age of the child or relative; and

(ii) in the case of a dependant child or a dependant relative aged 19 or over, at a rate equivalent to the amount which would have been specified for the time being in accordance with head (i) immediately before they attained the age of 19.

(2) The assessing authority may reduce any rate provided by virtue of paragraph (1) by taking into account the income and other resources of the dependant child or dependant relative to such extent as appears to the assessing authority to be equitable.

(3) In ascertaining whether a child is a dependant child or whether a person is a dependant relative for the purposes of this regulation, regard shall be had to their income and other resources.

(4) For the purposes of this regulation, “the Schedule” means Schedule 2 to the Income Support (General) Regulations (Northern Ireland) 1987 M31 .

Marginal Citations

M31 S.R. 1987 No. 459

Deductions – maintenance of former partner and dependants outside the household N.I.

40.  Where the person concerned is making and, throughout such period as the assessing authority considers adequate, has regularly made payments for the maintenance of—

(a) a former partner;

(b) a child; or

(c) a relative,

who is not a member of their household, a reasonable amount shall be deducted in respect of such payments.

Deductions – work-related expenses, including childcare payments N.I.

41.—(1) Where 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 their place of employment;

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

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

(d) the amount of any contribution paid, whether under a legal obligation or not, to an occupational pension scheme or personal pension scheme within the meaning of the Pension Schemes (Northern Ireland) Act 1993 M32 .

(2) Where the income of the person concerned consists, wholly or in part, of income from a trade, business or gainful occupation other than an occupation at a wage or salary, there shall be deducted, where it would be reasonable to do so, an amount to provide for the care of any dependant child living with the person concerned during the time that person is absent from home while they are engaged in that trade, business or gainful occupation.

Marginal Citations

M32 1993 c. 49

Deductions – housing costs N.I.

42.—(1) Paragraphs (2) and (3) apply only if the person concerned is a householder.

(2) In calculating the disposable income of the person concerned—

(a) the net rent payable by them in respect of their main or only dwelling, or such part of it as is reasonable in the circumstances, shall be deducted; and

(b) where the person concerned resides in more than one dwelling, the assessing authority shall decide which is the main dwelling.

(3) In calculating the amount of net rent payable, there shall be deducted—

(a) any housing benefit paid under the Social Security Contributions and Benefits (Northern Ireland) Act 1992;

(b) any rates rebate paid under section 126 of the Social Security Administration (Northern Ireland) Act 1992 M33 ;

(c) any proceeds of sub-letting any part of the premises; and

(d) an amount reasonably attributable to any person other than the person concerned, their partner or any dependant who is accommodated in the premises otherwise than as a sub-tenant.

(4) If the person concerned is not a householder, a reasonable amount in respect of the cost of their living accommodation shall be deducted.

(5) For the purposes of paragraph (4), if the person concerned cannot or does not differentiate between the cost of their living accommodation and the cost of their keep, the assessing authority shall make a deduction of fifty per cent of the cost of their living accommodation or such other percentage as the assessing authority considers reasonable in the circumstances.

(6) In this regulation—

“keep” means the provision of food, heat, electricity and other daily essentials;

“net rent” means—

(a)

any annual rent payable;

(b)

any annual instalment (whether of interest or capital) in respect of a debt secured by a mortgage or charge on the property;

(c)

a sum in respect of any rates payable; and

(d)

a reasonable allowance towards any necessary expenditure on repairs and insurance.

Marginal Citations

M33 1992 c. 8

General discretion to disregard income N.I.

43.  In calculating the disposable income of the person concerned from any source, there shall be disregarded such amount (if any) as the assessing authority considers reasonable, having regard to the nature of the income or to any other circumstances of the case.

CHAPTER 5 N.I. CALCULATION OF CAPITAL – REPRESENTATION (HIGHER COURTS)

Application of regulations 45 to 57 N.I.

44.  Regulations 45 to 57 apply only for the purposes of determining the client's disposable capital in relation to eligibility for representation (higher courts).

Calculation of capital N.I.

45.  Subject to the provisions of these Regulations, in calculating the disposable capital of the person concerned, the amount or value of every resource of a capital nature belonging to them on the date on which the application is made shall be included.

Disregard of financial resources which are the subject matter of the dispute N.I.

46.  In calculating the disposable capital of the person concerned, the amount or value of the subject matter of the dispute to which the application relates shall be disregarded.

Equitable value of any interest in land N.I.

47.—(1) In calculating the disposable capital of the person concerned, the value of any interest in the main or only dwelling in which they reside shall be wholly disregarded.

(2) Where the person concerned resides in more than one dwelling in which they have an interest, the assessing authority shall decide which is the main dwelling and shall take into account in respect of the value to them 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.

Household furniture and effects, personal clothing, and tools and equipment N.I.

48.  Other than in circumstances which are exceptional having regard in particular to the quantity or value of the items concerned, nothing shall be included in the disposable capital of the person concerned in respect of—

(a) the household furniture and effects of the main or only dwelling house occupied by them;

(b) articles of personal clothing; and

(c) the tools and equipment of their trade, unless they form part of the plant or equipment of a business to which the provisions of regulation 55 apply.

Disregard of certain welfare and other payments N.I.

49.  In calculating the disposable capital of the person concerned, there shall be disregarded—

(a) any extra-statutory job grant paid by the Department for Social Development;

(b) any payment made out of the social fund under Part 8 of the Social Security Contributions and Benefits (Northern Ireland) Act 1992 M34 ; and

(c) any arrears of direct payments made under regulations made under section 8(1) of the Carers and Direct Payments Act (Northern Ireland) 2002 M35 .

Marginal Citations

M34 1992 c. 7

M35 2002 c. 6 (N.I.)

Additional disregard where client or person concerned is of pensionable age N.I.

50.—(1) In calculating the disposable capital of the person concerned, where—

(a) the client or any other person concerned has attained pensionable age; and

(b) the total annual disposable income (excluding any net income derived from capital) of the client and any other person concerned is less than £3,355,

the amount of capital shown in the following table shall be disregarded—

Annual disposable income (excluding net income derived from capital)	Amount of capital disregarded
Up to £370	£35,000
£371 – £670	£30,000
£671 – £970	£25,000
£971 – £1,270	£20,000
£1,271 – £1,570	£15,000
£1,571 – £1,870	£10,000
£1,871 and above	£5,000

(2) In this regulation, “pensionable age” means the age of 60.

Disregard of interim court payments etc. N.I.

51.  In calculating the disposable capital of the person concerned, any payment of capital received from any source which is made in connection with the incident in respect of which the application has been made shall be wholly disregarded.

Value of money due to the person concerned N.I.

52.  Where money is due to the person concerned—

(a) whether it is payable immediately or otherwise; and

(b) whether payment is secured or not,

its value shall be taken to be its present value.

Value of a capital resource other than money N.I.

53.  In so far as any resource of a capital nature does not consist of money, its value shall be taken to be—

(a) the amount which that resource would realise if sold; or

(b) the value assessed in such other manner as appears to the assessing authority to be equitable.

Resources owned jointly or in common with other persons N.I.

54.  Subject to regulation 55, in calculating the value of the interest of the person concerned in any resource of a capital nature which they own jointly or in common with any other person, the assessing authority may treat that resource as being owned—

(a) in equal shares; or

(b) in such other proportions as appear to the assessing authority to be equitable.

Value of a business or other property interest N.I.

55.—(1) Where the person concerned is the sole owner of or partner in a business, the value of the business to them shall be taken to be the greater of—

(a) such sum, or their share of such sum, as could be withdrawn from the assets of the business without substantially impairing its profits or normal development; and

(b) such sum as that person could borrow on the security of their interest in the business without substantially injuring its commercial credit.

(2) Where the person concerned stands in relation to a company in a position analogous to that of a sole owner of or partner in a business, the assessing authority may, instead of ascertaining the value of their stocks, shares, bonds or debentures in that company, treat that person as if they were a sole owner of or partner in a business and calculate the amount of their capital in respect of that resource in accordance with paragraph (1).

(3) Where the person concerned owns solely, jointly or in common with other persons, any interest on the termination of a prior estate—

(a) whether

(i) legal or equitable;

(ii) vested or contingent; or

(iii) in reversion or remainder; and

(b) whether in real or personal property or in a trust or other fund,

the value of such interest shall be calculated in such manner as appears to the assessing authority to be both equitable and practicable.

Value of any life insurance or endowment policy N.I.

56.  The value to the person concerned of any life insurance or endowment policy shall be taken to be the amount which they could readily borrow on the security of that policy.

General discretion to disregard capital N.I.

57.  In calculating the disposable capital of the person concerned, there shall be disregarded such amount (if any) as the assessing authority considers reasonable in the circumstances of the case.