The Courts and Tribunals (Fee Remissions and Miscellaneous Amendments) Order 2023

Explanatory Note

(This note is not part of the Order)

This Order makes amendments to the fee remissions system for courts and tribunals as provided in the following Fees Orders—

• the Non-Contentious Probate Fees Order 2004

• the Gender Recognition (Application Fees) Order 2006

• the Court of Protection Fees Order 2007

• the Civil Proceedings Fees Order 2008

• the Family Proceedings Fees Order 2008

• the Magistrates’ Courts Fees Order 2008

• the Supreme Court Fees Order 2009

• the Upper Tribunal (Lands Chamber) Fees Order 2009

• the First-tier Tribunal (Gambling) Fees Order 2010

• the Upper Tribunal (Immigration and Asylum) (Judicial Review) (England and Wales) Fees Order 2011

• the First-tier Tribunal (Immigration and Asylum Chamber) Fees Order 2011

• the First-tier Tribunal (Property Chamber) Fees Order 2013

Eligibility for remission or part remission of a fee is determined against the disposable capital test and the gross monthly income test.

Articles 2(3), 3(3)(b), 4(3) and 5(3) amend the disposable capital test to replace the current ten-band system with a simplified three-band structure and increase the lower disposable capital threshold from £3,000 to £4,250. As the size of a fee increases above £1,421 the applicable disposable capital threshold increases at a multiplier of three times the level of the fee payable, up to a maximum disposable capital threshold of £16,000. A party who satisfies the disposable capital test will be considered against the gross monthly income test, which will determine if a party will receive full fee remission, pay the fee in full or in part.

Articles 2(4)(b), 3(3)(c)(ii), 4(4)(b) and 5(4)(b) raise the ‘age cap’ from 61 to 66 years old. The ‘age cap’ provides that a party or their partner aged 66 or over satisfies the disposable capital test if they have less than £16,000 as disposable capital.

Articles 2(5), 3(3)(d), 4(5) and 5(5) amend the definition of ‘disposable capital’ to refer to a party’s savings and investments.

Articles 2(9), 3(3)(h), 4(9) and 5(9) update the list of capital that is disregarded (‘excluded disposable capital’) for the purposes of the disposable capital test. Household furniture, articles of personal clothing and tools and implements of trade are removed from the list of excluded disposable capital. In addition, the list is amended to include payments received from specified compensation schemes.

Articles 2(10), 3(3)(i), 4(10) and 5(10) amend the gross monthly income test. The gross monthly income test applies a series of applicable thresholds to a party. The applicable threshold for a party is determined by reference to their household composition. The applicable threshold for a party who is single with no children is £1,420, with an additional £710 applied to this threshold for a couple. If a party has children an additional £710 is applied for each child aged 14 or over, and a further £425 applied for each child aged 13 or below. A party whose gross monthly income falls below the applicable threshold will receive full fee remission.

Articles 2(11), 3(3)(j), 4(11) and 5(11) further amend the gross monthly income test to provide that a party who receives any ‘passporting benefits’ as defined by this Order automatically satisfies the gross monthly income test and will be eligible for full fee remission.

Articles 2(12), 3(3)(k), 4(12) and 5(12) amend the gross monthly income cap. A party with income in excess of £3,000 above the applicable threshold will not be eligible for any remission.

Articles 2(13), 3(3)(l), 4(13) and 5(13) amend the definition of ‘gross monthly income’ so that it may be determined against either the party’s gross monthly earnings in the month immediately preceding the application for fee remission, or as an average of the party’s earnings in the three months immediately preceding the application for fee remission, plus any gross amount received from any other source other than excluded benefits in the month preceding the application.

Articles 2(14), 3(3)(m), 4(14) and 5(14) provide the Lord Chancellor (or the Chief Executive of the Supreme Court in the case of the Supreme Court Fees Order 2009) with the power to request further information and evidence to assess a party’s eligibility for fee remission. They further provide the Lord Chancellor (or the Chief Executive of the Supreme Court in the case of the Supreme Court Fees Order 2009) the discretion to treat an application as abandoned where a party fails to comply with the request within a specified period of time.

This Order also amends Fee 2.1(a) of the Civil Proceedings Fees Order 2008 to apply this fee to cases assigned to the new ‘intermediate track’. Prior to the introduction of the ‘intermediate track’ such cases would have been assigned to the ‘multi-track’, for which the same Fee 2.1(a) is prescribed.

Savings provisions in Article 6 preserve the current remission system for applications for remission received before 27th November 2023, including an application for a refund received on or after 27th November 2023 relating to a fee paid before 27th November 2023.

In respect of the amendments made by this Order to the fee remissions scheme, a full impact assessment was published alongside the response to the consultation ‘revising the ‘Help with Fees’ remission scheme’, and copies can be obtained on legislation.gov.uk website.

No impact assessment has been carried out for amendments to Fee 2.1(a) of the Civil Proceedings Fees Order 2008 as no, or no significant impact, on the private, voluntary, or public sectors is foreseen.