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

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”) M1 ;

[F1 (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 M2 ;

(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 M3 ;

(j) any pensions paid under the Naval, Military and Air Force Etc. (Disablement and Death) Service Pensions Order 2006 M4 ;

(k) any armed forces independence payment made under the Armed Forces and Reserve Forces (Compensation Scheme) Order 2011 M5 ;

(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

F1 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

M1 1992 c. 7

M2 2002 c. 6 (N.I.)

M3 S.I. 1983/686

M4 S.I. 2006/606

M5 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 M6 .

Marginal Citations

M6 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 M7 .

(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

M7 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 M8 ;

(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

M8 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.