Made | 8th November 2001 | ||
Laid before Parliament | 9th November 2001 | ||
Coming into force | 30th November 2001 |
Scope
3.
- (1) The Lord Chancellor shall fund such legal assistance as the Tribunal directs regarding a relevant reference.
(2) For the purposes of this regulation, a relevant reference is a reference which the Tribunal is to determine in relation to any individual who:
Applications for legal assistance
4.
- (1) Any application shall be made in writing to the Tribunal.
(2) The application shall state:
Provision of information
5.
- (1) The Tribunal may direct the applicant to provide any information it requires in order to decide whether to grant his application.
(2) The applicant shall provide the Tribunal with any information it requires under paragraph (1).
Legal assistance order
6.
- (1) Where an application for legal assistance is granted, the Tribunal shall:
(2) The legal assistance order shall include details of any contribution payable.
Refusal of legal assistance
7.
- (1) Where an application for legal assistance is refused, the Tribunal shall send written reasons for the refusal to the applicant.
(2) An applicant whose application for legal assistance has been refused may make a renewed application in writing to the Tribunal.
(3) Any renewed application to the Tribunal under paragraph (2) shall specify any new or additional factors which the applicant wishes the Tribunal to take into account.
Interests of justice test
9.
In deciding whether it is in the interests of justice for legal assistance to be granted, the Tribunal shall take all relevant factors into account, including:
Financial eligibility
10.
- (1) Where a doubt arises as to whether the financial resources of an individual are such that he requires legal assistance, the doubt shall be resolved in his favour.
(2) The Tribunal shall determine the financial eligibility of the applicant and any contribution payable in accordance with these Regulations.
(3) The Tribunal may appoint an expert to prepare a report with regard to the financial resources of the applicant.
Resources of other persons
11.
- (1) In calculating the disposable income and disposable capital of the applicant, the resources of his partner shall be treated as his resources.
(2) Where it appears to the Tribunal that:
the Tribunal may treat all or any part of the resources of that other person as the resources of the applicant.
(3) In this regulation and regulation 12 "person" includes a company, partnership, body of trustees and any body of persons, whether corporate or not corporate.
Deprivation or conversion of resources
12.
If it appears to the Tribunal that the applicant has, with intent to reduce the amount of his disposable income or disposable capital, whether for the purpose of making himself eligible to receive legal assistance, reducing his liability to pay a contribution, or otherwise:
the resources which he has so deprived himself of, transferred or converted shall be treated as part of his resources or as not so converted as the case may be.
Duty to report change in financial circumstances
13.
The assisted person shall immediately inform the Tribunal of any change in his financial circumstances (or those of any other person whose resources are to be treated as his resources under these Regulations) of which he is, or should reasonably be aware, which has occurred since any assessment of his resources, and which might affect the terms on which he was assessed as eligible to receive legal assistance.
Amendment of assessment due to error or receipt of new information
14.
Where:
the Tribunal may make an amended assessment, and may take such steps equitable to give effect to it in relation to any period during which legal assistance has already been provided.
Further assessments
15.
- (1) Where it appears that the circumstances of the assisted person may have altered so that:
the Tribunal shall, subject to paragraph (6), make a further assessment of the assisted person's resources and any contribution which he is required to pay under regulation 35, in accordance with these Regulations.
(2) Where a further assessment is made, the period of calculation for the purposes of disposable income shall be the period of 12 months following the date of the change of circumstances or such other period of 12 months as the Tribunal considers appropriate.
(3) Where a further assessment is made, the amount or value of every resource of a capital nature acquired since the date of the original application shall be ascertained as at the date of receipt of that resource.
(4) Any capital contribution which becomes payable as a result of a further assessment shall be payable in respect of the cost of the legal assistance, including costs already incurred.
(5) Where legal assistance is withdrawn as a result of a further assessment of capital, the Tribunal may require a contribution to be paid in respect of costs already incurred.
(6) The Tribunal may decide not to make a further assessment under paragraph (1) if it considers such a further assessment inappropriate, having regard in particular to the period during which legal assistance is likely to continue to be provided to the assisted person.
Calculation of income
16.
- (1) The income of the individual from any source shall be taken to be the income which he may reasonable expect to receive (in cash or in kind) during the period of calculation.
(2) For the purpose of this regulation and regulation 32, the period of calculation shall be the 12 months starting on the date of the application for legal assistance or such other 12 month period as the Tribunal considers appropriate.
17.
- (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 Tribunal considers more appropriate and practicable:
(2) In calculating the profits under paragraph (1)(a):
18.
- (1) For the purposes of this regulation, "national insurance contributions" means contributions under Part I of the Social Security Contributions and Benefits Act 1992[4].
(2) In calculating the disposable income of the individual, any income tax and national insurance contributions paid or payable on that income in respect of the period of calculation shall be deducted.
19.
- (1) For the purposes of this regulation, "the Schedule" means Schedule 2 to the Income Support (General) Regulations 1987[5].
(2) Subject to paragraph (3), in calculating the disposable income of the individual there shall be a deduction at or equivalent to the following rates (as they applied at the beginning of the period of calculation):
(3) The Tribunal may reduce any rate provided by virtue of paragraph (2)(b) by taking into account the income and other resources of the dependant child or dependant relative to such extent as appears to the Tribunal to be equitable.
(4) In ascertaining whether a child is a dependant child or whether a person is a dependant relative for the purpose of this regulation, regard shall be had to their income and other resources.
20.
Where the individual is making and, throughout such period as the Tribunal considers adequate, has regularly made payments for the maintenance of:
who is not a member of his household, in calculating the disposable income of the individual a reasonable amount shall be deducted in respect of such payments.
21.
In calculating the disposable income of the individual from any source, the Tribunal shall disregard such amount (if any) as it considers reasonable, having regard to the nature of the income or to any other circumstances.
22.
In calculating the disposable income of the individual, any sums (net of council tax benefit) payable by him in respect of the council tax to which he is liable by virtue of section 6 of the Local Government Finance Act 1992[6] shall be deducted.
23.
Where the income of the individual consists, wholly or partly, of a wage or salary from employment, in calculating his disposable income there shall be deducted:
24.
- (1) Paragraphs (2) to (5) apply only if the individual is a householder.
(2) In calculating the disposable income of the individual, the net rent payable by him in respect of his main or only dwelling, or such part of it as is reasonable in the circumstances, shall be deducted.
(3) Where the individual lives in more than one dwelling, the Tribunal shall decide which is the main dwelling.
(4) For the purpose of this regulation, "net rent" includes:
(5) In calculating the amount of net rent payable, there shall be deducted:
(6) If the individual is not a householder, a reasonable amount in respect of the cost of his living accommodation shall be deducted.
Calculation of capital
25.
Subject to the provisions of these Regulations, in calculating the disposable capital of the individual, the amount or value of every resource of a capital nature belonging to him on the date on which the application for legal assistance is made shall be included.
26.
In so far as any resource of a capital nature does not consist of money, its value shall be taken to be:
27.
Where money is due to the individual, whether it is payable immediately or otherwise and whether payment is secured or not, its value shall be taken to be its present value.
28.
The value to the individual of any life insurance or endowment policy shall be taken to be the amount which he could readily borrow on the security of that policy.
29.
Other than in circumstances which are exceptional having regard in particular to the quantity or value of the items concerned, nothing shall be included in the disposable capital of the individual in respect of:
30.
- (1) Where the individual is the sole owner of or partner in a business, the value of the business to him shall be taken to be the greater of:
(2) Where the individual stands in relation to a company in a position analogous to that of a sole owner or partner in a business, the Tribunal may, instead of ascertaining the value of his stocks, shares, bonds or debentures in that company, treat him as if he were a sole owner or partner in a business and calculate the amount of his capital in respect of that resource in accordance with paragraph (1).
(3) Where the individual owns solely, jointly or in common with other persons, any interest on the termination of a prior estate, whether
the value of such interest shall be calculated in such manner as is both equitable and practicable.
(4) In Scotland, the value of any interest, whether vested or contingent, of the individual in the fee of any heritable or moveable property forming the whole or part of any trust or other estate, shall be calculated in such manner as is both equitable and practicable.
31.
- (1) In calculating the disposable capital of the individual, the value of any interest in land shall be taken to be the amount for which that interest could be sold less the amount of any mortgage debt or heritable security, subject to the following:
(2) Where the individual resides in more than one dwelling, the Tribunal shall decide which is the main dwelling.
32.
Where under any statute, bond, covenant, guarantee or other instrument the individual is under a contingent liability to pay any sum or is liable to pay a sum not yet ascertained, the Tribunal shall disregard such amount as is reasonably likely to become payable within the period of calculation in regulation 16(2).
33.
In calculating the disposable capital of the individual, the Tribunal may disregard any capital resource where:
34.
In calculating the disposable capital of the individual, the Tribunal may disregard such amount of capital (if any) as it considers reasonable, having regard to the nature of the capital or to any other circumstances.
Contributions
35.
- (1) The assisted person shall make the following contributions:
(2) All contributions shall be payable in such manner as the Tribunal directs.
(3) All contributions payable under paragraph (1)(a) shall be payable monthly throughout the period the legal assistance order is in force.
(4) All contributions payable under paragraph (1)(b) shall be payable upon assessment, or at such other time as the Tribunal directs.
(5) Where the contribution made by the assisted person exceeds the cost to the Tribunal of the legal assistance provided to him, the excess shall be refunded to the assisted person.
36.
- (1) Where, on determining a reference, the Tribunal directs the Authority to:
the Tribunal may, at the hearing of the reference, order the refund of some or all of any contribution made by the assisted person.
(2) In making a decision under paragraph (1), the Tribunal shall have regard to all the circumstances of the case, including the conduct of the parties.
38.
Where the Authority has issued a decision notice against more than one assisted person in the same case, the Tribunal may, unless it considers it not to be in the interests of justice to do so, assign the same solicitor and, if any, advocate, to each of those individuals.
Amendment of legal assistance order
39.
- (1) An application may be made to the Tribunal to amend a legal assistance order, and any such application shall state the grounds on which it is made.
(2) The Tribunal may grant or refuse any application made under paragraph (1).
(3) The Tribunal may, before granting legal assistance for more than one advocate, require written advice from any advocate already assigned to the assisted person on the question of what legal assistance is required in the proceedings.
40.
- (1) Where an application for legal assistance has been granted, an application may be made to the Tribunal to select a representative in place of a representative previously assigned and any such application shall state the grounds on which it is made.
(2) The Tribunal may grant or refuse any application made under paragraph (1).
(2) Before the Tribunal withdraws legal assistance, it shall take into account any representations which are made within a reasonable time by or on behalf of the assisted person.
(3) Where legal assistance is withdrawn, the Tribunal shall provide written notification of the withdrawal and of the reason for it to the assisted person and his solicitor, who shall inform any assigned advocate.
(4) On any subsequent application by the assisted person for legal assistance in respect of the same proceedings, he shall declare the withdrawal of legal assistance and the reason for it.
Duty to report abuse
42.
Notwithstanding the relationship between or rights of a representative and client or any privilege arising out of any such relationship, where the representative for an assisted person knows or suspects that that person:
the representative shall immediately report the circumstances to the Tribunal.
[2] 1992 c. 53. By virtue of paragraph 18 of Schedule I, as amended by paragraph 6(2) of Schedule 20 to the Financial Services and Markets Act 2000, the Financial Services and Markets Tribunal is a tribunal under the supervision of the Council on Tribunals.back
[3] 1980 c. 46. Section 25A was inserted by the Law Reform (Miscellaneous Provisions) (Scotland) Act (c. 40), section 24, and amended by the Criminal Procedure (Consequential Provisions) (Scotland) Act 1995 (c. 40), Schedule 4, paragraph 31 and S.I. 1999/1042 and 2000/121.back
[5] S.I. 1987/1967; the relevant amending instruments are S.I. 2000/440 and 1993.back
[6] 1992 c. 14; as amended by S.I. 1997/74.back
[7] 1993 c. 48. The definition of a personal pension scheme in section 1 was amended by the Welfare Reform and Pensions Act 1999 (c. 30), Schedule 2, paragraph 3(1)(a).back