KING'S BENCH DIVISION
ADMINISTRATIVE COURT
B e f o r e :
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THE KING on the application of WA |
Claimant |
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- and - |
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(1) DIRECTOR OF LEGAL AID CASEWORK (2) THE LORD CHANCELLOR |
Defendants |
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MR M BIRDLING KC and MS S O'KEEFE (instructed by the Government Legal Department) appeared on behalf of the First Defendant.
MR S SIBBEL (instructed by Government Legal Department) appeared on behalf of the Second Defendant).
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Crown Copyright ©
MR JUSTICE ANDREW BAKER:
Introduction
(1) if G was the claimant's dependent child and a member of her household, then under the Means Regulations, in the calculation of her disposable income for the purpose of a decision on her application for legal aid,
(a) prima facie a deduction for maintenance of G had to be made at a fixed rate referred to in Means Regulation 25(2)(b)(i); and
(b) her accommodation costs had to be deducted in full;
(2) in the disposable income calculation in fact performed,
(a) no deduction was made under Means Regulation 25(2)(b) on the ground that G, although a dependent child, was not a member of the claimant's household; and
(b) therefore, the deduction of the claimant's accommodation cost was at the capped rate of £545 per month referred to in Means Regulation 28(7);
(3) if it was correct to treat Regulation 25(2)(b) as inapplicable to G, then the claimant was ineligible for legal aid on income grounds, whereas, if Regulation 25(2)(b) had been applied and thus the accommodation cost deduction had not been capped, the disposable income calculation would have shown her to be eligible.
Means Regulations 25 and 28
"in respect of the maintenance of any dependent child or dependent relative of the individual, where such persons are members of the individual's household—
(i) in the case of a dependent child or a dependent relative aged 15 or under… the amount specified at (a) in column 2 in the table in paragraph 2 of the Schedule; and
(ii) in the case of a dependent child or a dependent relative aged 16 or over … the amount specified at (b) in column 2 in [the same table].".
The Schedule to which Means Regulation 25(2)(b) refers is Schedule 2 to the Income Support (General) Regulations 1987 (the "Income Support Regulations").
"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."
That is, in substance, a corollary to Means Regulation 25(4), which requires regard to be had to the income and other resources of the child or other relative in ascertaining whether they are a dependant in the first place.
"If no deduction has been made under regulation 25(2), the maximum amount to be deducted under paragraph (2) … must be £545 [per month]."
"Adjustments to the allowance:
(a) Allowance for parents whose means are not aggregated.
A decision will need to be made whether to grant the dependant's allowance to the individual (it cannot be granted to both the individual and their partner). It would be normal to grant the allowance to the individual if they are receiving the child benefit. If this is not clear the allowance will be granted if the individual appears to be supporting the child from their money.
…
(b) Regulation 25(3) provides that the amount of the dependant's allowance may be reduced by the income and other resources of the child dependant. It would be normal to assume (unless information is given to the contrary) that a child under sixteen would not have any income but children over that age who are in full-time education or training may for example be receiving a grant or if in an apprenticeship will be receiving a wage. This income should be declared by the individual within their application and the amount of the dependant's allowance will be reduced accordingly.
Note: Any excess of the child's income over the allowance will not be treated as the individual's income."
"the individual is making and … has regularly made payments for the maintenance of … (b) a child … who is not a member of the individual's household, a reasonable amount must be deducted in respect of such payments."
The Decision
"3. In relation to [G] we cannot treat the child as dependent on both the client and the opponent and so we must establish who is the childs [sic] main carer. This is usually done by establishing who is in receipt of the child benefit for the child. In this situation the client does not receive child benefit for the child and the child resides at her home 2 out of 14 days therefore it is not considered his main residence. The dependents [sic] allowance is therefore not available for this child.
4. We have allowed a deduction for maintenance payments that the client is making towards [G]".
Grounds
Ground 1
"The approach under Regulation 15(1) of the IS Regs is not imported wholesale and the wording of the Guidance does not exclude the consideration by the Director of other relevant circumstances"
and that the Lord Chancellor
"reads membership of a household in Regulation 25(2) in the same way that the IS Regs use that term, subject to child benefit being the 'normal' indication of responsibility in the Guidance rather than the sole indication."
But that "subject to" means in truth that the Lord Chancellor does not read membership of a household in Means Regulation 25(2) in the same way that the Income Support Regulations use that term.
(i) requires a deduction to be made in respect of the maintenance of dependent children or other relatives who are members of the legal aid applicant's household in the disposable income calculation to be undertaken in a legal aid means assessment;
(ii) fixes the amount of that deduction, subject to Regulation 25(3), at the amount stated in the Table.
Reference is not required to anything in the Income Support Regulations other than column 2 in the Table for the amount in order to understand or apply Means Regulation 25(2).
"is not a finding as to the significance of the relationship that a particular parent/carer has with the child. It is merely acknowledgement of the individual's financial situation at the time of the legal aid application."
Given the potential relevance, in principle, of the nature and strength of a parent/child relationship to the question whether the child is a member of the parent's household, that seems to me to betray a misunderstanding of law as to the meaning and effect of the Means Regulations.
(1) first, a view that the portion of an applicant's income treated as not disposable, because of housing cost, should be capped at a standard rate where they have no housing need in respect of any dependent child or other relative;
(2) second, a view that the housing cost of an applicant, one feature of whose household is the housing of a dependent child or other relative, should not be capped at that level;
(3) third, a view that such an applicant's housing cost should not be capped at all as a measure of a portion of income to be treated as not disposable for present purposes.
Ground 2
"that success in the underlying proceedings may at some point in future affect the child's living arrangements or the financial implication for the applicant. The means assessment does not account for any other future financial implications …"
Ground 3
Result