This Part applies for the purposes of determining whether an individual qualifies for civil legal services under Part 1 of the Act in accordance with section 11(1)(a).

Subject to regulation 5, the Director must determine whether the individual's financial resources are such that the individual is eligible for civil legal services in accordance with these Regulations.

In this regulation—

• “relevant tribunal” means—

  1. a

     the Health, Education and Social Care Chamber of the First-tier Tribunal M10; or

  2. b

     the Mental Health Review Tribunal for Wales M11;

• “special Children Act 1989 case” means any matter described in paragraph 1(1)(a), (b) or (c) (care, supervision and protection of children) of Part 1 of Schedule 1 to the Act, to the extent that it relates to any of the following provisions of the Children Act 1989—

  1. a

     section 25 (use of accommodation for restricting liberty) M12, to the extent that the individual to whom civil legal services may be provided is the child who is or would be the subject of the order;

  2. b

     section 31, to the extent that the individual to whom civil legal services may be provided is the child who is or would be the subject of the order, that child's parent or other person with parental responsibility for that child;

  3. c

     section 43 (child assessment orders), to the extent that the individual to whom civil legal services may be provided is the child who is or would be the subject of the order, that child's parent or other person with parental responsibility for that child;

  4. d

     section 44 (orders for emergency protection of children), to the extent that the individual to whom civil legal services may be provided is the child who is or would be the subject of the order, that child's parent or other person with parental responsibility for that child; or

  5. e

     section 45 (duration of emergency protection orders and other supplemental provisions) M13, to the extent that the individual to whom civil legal services may be provided is the child who is or would be the subject of the order, that child's parent or other person with parental responsibility for that child,

  but does not include appeals from final orders made under any of those provisions of the Children Act 1989; and

• “TPIM proceedings” are the proceedings listed at (b) to (g) of the definition of “TPIM proceedings” given in section 30(1) of the Terrorism Prevention and Investigation Measures Act 2011.

Subject to paragraph (4), where the Director is satisfied that the individual is properly in receipt, directly or indirectly, of a means-tested benefit or support paid by another EU Member State that is equivalent to a benefit or support listed in paragraph (2), the Director must determine that the individual's financial resources are such that the individual is eligible for legal help or legal representation in relation to a matter described in paragraph 44 (cross-border disputes) of Part 1 of Schedule 1 to the Act without paying (where applicable) any contributions.

This regulation does not apply to any applications to which regulation 5 or 6 applies.

Subject to paragraph (5), where the gross monthly income of the individual exceeds £2,657, the Director must determine that the individual's financial resources are such that the individual is not eligible for civil legal services.

Where the individual has more than four dependent children in respect of whom the individual receives child benefit, the sum referred to in paragraph (4) must be increased by £222 in respect of the fifth and each subsequent child.

In this regulation “child benefit” means child benefit under section 141 M29 of the Social Security Contributions and Benefits Act 1992 or section 137 M30 of the Social Security Contributions and Benefits (Northern Ireland) Act 1992.

This regulation has effect subject to regulations 5, 6 and 7.

Except where paragraph (3) applies, where an individual's monthly disposable income does not exceed £733 and the individual's disposable capital does not exceed £8,000, the Director must determine that the individual's financial resources are such that the individual is eligible for civil legal services.

Where an application is made for legal help in relation to any matter described in paragraph 41 (inquests) of Part 1 of Schedule 1 to the Act, the Director may, if the Director considers it equitable to do so, disapply the eligibility limits in regulations 7 and 8 in respect of the application.

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

In this regulation—

• “Human Rights Convention” has the meaning given to “the Convention” by section 21(1) of the Human Rights Act 1998 M31; and

• “relevant determination” is a determination under—

  1. a

     section 10(2)(b) of the Act, to the extent that it relates to services which consist of advocacy in proceedings at an inquest under the Coroners Act 1988 M32 into the death of a member of the family of the individual who has made an application; or

  2. b

     section 10(4)(c) of the Act.

This regulation applies to an application by an individual in relation to a matter described in paragraph 44 (cross-border disputes) of Part 1 of Schedule 1 to the Act.

For the purposes of this regulation the Member State in which an individual is domiciled must be determined in accordance with Article 59 of Council Regulation (EC) No 44/2001 of 22 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.

Where this regulation applies, the Director may, if the Director considers it equitable to do so, disapply the eligibility limits in regulations 7 and 8.

For the purposes of this regulation, one month means the period of one calendar month which ends on the date on which the application is made, or such other equivalent period as the Director considers appropriate.

Where the Director calculates that an individual has disposable income or disposable capital of an amount which does not make the individual eligible for civil legal services, the Director must determine that the individual's financial resources are such that the individual is not eligible for civil legal services.

Sub-paragraph (2) applies where the individual is acting in a representative, fiduciary or official capacity.

Subject to paragraph (2), in calculating the disposable income and disposable capital of the individual, the resources of the individual's partner must be treated as the individual's resources.

The resources of the individual's partner must not be treated as the individual's resources if the individual has a contrary interest in the dispute in respect of which the application is made.

Paragraph (4) applies where an application is made for any form of civil legal services except legal representation (other than legal representation in family proceedings).

Where the individual 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, must 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.

In this regulation—

• “family enactment” has the same meaning as in paragraph 12(9) of Part 1 of Schedule 1 to the Act;

• “family relationship” and “matter arising out of a family relationship” have the same meaning as in paragraphs 12(7) and (8) of Part 1 of Schedule 1 to the Act M33; and

• “family proceedings” means—

  1. a

     any matter which is described in any of the following paragraphs of Part 1 of Schedule 1 to the Act (civil legal services)—

     1. i

        paragraph 1 (care, supervision and protection of children);

     2. ii

        paragraph 9 (inherent jurisdiction of High Court in relation to children and vulnerable adults), to the extent that the matter relates to—

     3. aa

        a child; or

     4. bb

        a vulnerable adult but only to the extent that it is a matter arising out of a family relationship;

     5. iii

        paragraph 10 (unlawful removal of children);

     6. iv

        paragraph 11 (family homes and domestic violence);

     7. v

        paragraph 12 (victims of domestic violence and family matters);

     8. vi

        paragraph 13 (protection of children and family matters);

     9. vii

        paragraph 14 (mediation in family disputes);

     10. viii

         paragraph 15 (children who are parties to family proceedings);

     11. ix

         paragraph 16 (forced marriage);

     12. x

         paragraph 17 (EU and international agreements concerning children);

     13. xi

         paragraph 18 (EU and international agreements concerning maintenance); or

  2. b

     a matter arising out of a family relationship in respect of which the Director has made an exceptional case determination under section 10 of the Act and which is under—

     1. i

        a family enactment; or

     2. ii

        the Trusts of Land and Appointment of Trustees Act 1996 M34.

For the purposes of the further determination under paragraph (1) or (2), the period of calculation must be the period of one month following the date of the change of circumstances or such other period of one month as the Director considers appropriate.

Where a further determination is made, the amount or value of every resource of a capital nature acquired since the date the original application was made must be ascertained as at the date of receipt of that resource.

Any contribution out of capital in accordance with regulation 44(3) which becomes payable as a result of a further determination must be paid in respect of the cost of the civil legal services, including costs already incurred.

Where a determination in relation to which a certificate was issued is withdrawn as a result of a further determination, the Director may require a contribution to be paid in respect of costs already incurred.

The Director may decide not to make a further determination under paragraph (1) or (2) if the Director considers such a further determination inappropriate, having regard in particular to the period during which civil legal services are likely to continue to be provided to the individual.

For the purposes of this regulation, “national insurance contributions” means contributions under Part 1 of the Social Security Contributions and Benefits Act 1992 M35.

Subject to paragraph (3), in calculating the disposable income of the individual, any income tax and national insurance contribution paid on that income in respect of the period of calculation must be deducted.

Where an application is made for family help (higher) or legal representation, in calculating the disposable income of the individual any income tax and national insurance contribution payable on that income in respect of the period of calculation must be deducted.

Where an application is made for legal help or legal representation in relation to a matter described in paragraph 44 (cross-border disputes) of Part 1 of Schedule 1, in calculating the disposable income or the gross income of the individual, a payment by another EU Member State that is equivalent to a payment listed in paragraph (1) must be disregarded.

For the purposes of this regulation, “the Schedule” means Schedule 2 to the Income Support (General) Regulations 1987 M50.

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

In ascertaining whether a child is a dependent child or whether a person is a dependent relative for the purposes of this regulation, regard must be had to their income and other resources.

Where the income of the individual consists, wholly or partly, of income from a trade, business or gainful occupation other than an occupation at a wage or salary, there must be deducted, where it would be reasonable to do so, an amount to provide for the care of any dependent child living with the individual during the time that individual is absent from home whilst the individual is engaged in that trade, business or gainful occupation.

Paragraphs (2) to (5) apply only if the individual is a householder.

If the individual is not a householder, a reasonable amount in respect of the cost of their living accommodation must be deducted.

If no deduction has been made under regulation 25(2), the maximum amount to be deducted under paragraph (2) or (4) or, as the case may be, (6), must be £545.

In this regulation—

• “householder”, in relation to domestic premises, means a person who—

  1. a

     owns the dwelling (as a freeholder or leaseholder); or

  2. b

     rents accommodation at that address (as a tenant or sub-tenant); and

• “net rent” means—

  1. a

     any monthly rent; and

  2. b

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

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

Where an application is made for other forms of civil legal services, the sums described in this regulation must be disregarded from the calculation of capital.

In calculating the disposable capital of the individual, the value of any interest in land must be taken to be the amount for which that interest could be sold after deducting, subject to paragraphs (2) and (3), the amount of any debt secured by a mortgage or charge on the property.

The total amount to be deducted under this regulation on an assessment of the individual's disposable capital may not exceed £100,000 in respect of all secured debts.

Where the individual resides in more than one dwelling, the Director must decide which is the main dwelling for the purposes of this regulation and regulations 38 and 39.

Subject to paragraphs (2) and (3), in calculating the disposable capital of the individual, the amount or value of the subject matter of the dispute to which the application relates must be disregarded.

The total amount to be disregarded under this regulation must not exceed £100,000.

Subject to paragraph (2), in calculating the disposable capital of the individual, the value (after the application of regulations 37 and 38) of the individual's interest (if any) in the main or only dwelling in which the individual resides must be disregarded.

The total amount to be disregarded under this regulation must not exceed £100,000.

For the purposes of paragraph (1)(b), an individual who is properly in receipt, directly or indirectly, of a benefit listed in regulation 6(2) or (3) is deemed to have a monthly disposable income of nil.