The Civil Legal Aid (Financial Resources and Payment for Services) Regulations 2013

CHAPTER 2 E+W Making a determination in respect of an individual's financial resources

Provision of information E+W

13.  Where an application is made, or a further determination falls to be made under regulation 20, the individual must provide the Director with the information necessary to enable the Director to—

(a) make the determination referred to in regulation 4(2); and

(b) calculate, where relevant, the disposable income and disposable capital of the individual.

Calculations E+W

14.—(1) The Director must, subject to regulation 6—

(a) calculate the gross income of the individual in accordance with regulation 7;

(b) calculate the disposable income and disposable capital of the individual in accordance with regulations 21 to 43; and

(c) calculate any contributions payable in accordance with regulations 44 and 45.

(2) When calculating—

(a) gross income for the purposes of regulation 7; or

(b) disposable income for the purposes of regulation 8,

the period of calculation is one month.

(3) 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.

(4) 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.

Application in representative, fiduciary or official capacity E+W

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

(2) The Director, in calculating the individual's disposable income and disposable capital, and the amount of any contribution to be paid—

(a) subject to sub-paragraph (c), must not take the personal resources of the individual acting in such a capacity into account unless the Director considers that the individual might benefit from the proceedings;

(b) must have regard to the value of any property or estate, or the amount of any fund, out of which that individual is entitled to be indemnified; and

(c) may also have regard to the resources of any person who has a beneficial interest in that property, estate or fund.

Resources to be treated as the individual's resources E+W

16.—(1) 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.

(2) 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.

(3) 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).

(4) 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.

(5) Where it appears to the Director that—

(a) another person is, has been or is likely to be substantially maintaining the individual or any person whose resources are to be treated as the individual's resources under this regulation; or

(b) any of the resources of another person have been or are likely to be made available to the individual or any person whose resources are to be treated as the individual's resources under this regulation,

the Director may treat all or any part of the resources of that other person as the resources of the individual, and may assess or estimate the value of those resources as well as the Director is able.

(6) A reference to “individual” in regulations 21 to 36 and 40 to 43 is a reference to—

(a) the individual in respect of whom the determination about financial resources is being made; and

(b) any person whose resources are to be treated as the individual's resources under this regulation.

(7) 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 M1 ; and

“family proceedings” means—

(a)

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

(i)

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

(ii)

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

(aa)

a child; or

(bb)

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

(iii)

paragraph 10 (unlawful removal of children);

(iv)

paragraph 11 (family homes and domestic violence);

(v)

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

(vi)

paragraph 13 (protection of children and family matters);

(vii)

paragraph 14 (mediation in family disputes);

(viii)

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

(ix)

paragraph 16 (forced marriage);

(x)

paragraph 17 (EU and international agreements concerning children);

(xi)

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

(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—

(i)

a family enactment; or

(ii)

the Trusts of Land and Appointment of Trustees Act 1996 M2 .

Marginal Citations

M1 The Civil Legal Aid (Family Relationship) Regulations 2012 (S.I. 2012/2684), made under paragraph 12(8)(b) of Part 1 of Schedule 1 to the Act, make provision about when matters arise out of a family relationship for the purpose of paragraph 12.

M2 1996 c. 47.

Deprivation or conversion of resources E+W

17.  If it appears to the Director that the individual, or any person whose resources are to be treated as the individual's resources in accordance with regulation 16, has, with intent to reduce the amount of their disposable income or disposable capital, whether for the purpose of making the individual eligible to receive civil legal services, reducing the individual's 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 must be treated as part of the individual's resources or as not so converted as the case may be.

Duty to report change in financial circumstances E+W

18.  The individual must immediately inform the Director of any change in the individual's financial circumstances (or those of any person whose resources are to be treated as the individual's resources in accordance with regulation 16)—

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

(b) which has occurred since any application or determination in respect of the individual's financial resources; and

(c) which might affect a determination that the individual's financial resources are such that the individual is eligible for civil legal services or the amount, if any, of any contribution payable.

Amendment of determination due to error or receipt of new information E+W

19.  Where—

(a) it appears to the Director that there has been an error in a determination in respect of an individual's financial resources or the amount of any contribution payable, or in any calculation or estimate upon which that determination was based; or

(b) new information which is relevant to the determination in respect of an individual's financial resources has come to light,

the Director may amend the determination in respect of the individual's financial resources, and may take such steps as appear equitable to give effect to it in relation to any period during which civil legal services have already been provided.

Further determinations E+W

20.—(1) Where—

(a) the Director has determined under regulation 8 that the individual's financial resources are such that the individual is eligible to receive civil legal services; and

(b) it appears to the Director that the circumstances of the individual may have changed so that—

(i) their normal disposable income may have increased by an amount greater than £60 or decreased by an amount greater than £25; or

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

the Director must, subject to paragraph (7), make a further determination in respect of the individual's financial resources, and the contribution (if any) payable in accordance with these Regulations.

(2) Where—

(a) the Director has determined under regulation 6 that the individual's financial resources are such that the individual is eligible for civil legal services; and

(b) it appears to the Director that the individual is not, or is no longer, properly in receipt, directly or indirectly, of a benefit or support referred to in that regulation,

the Director must, subject to paragraph (7), make a further determination in respect of the individual's financial resources, and contribution (if any) payable in accordance with these Regulations.

(3) 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.

(4) 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.

(5) 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.

(6) 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.

(7) 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.