The Civil Legal Services (Financial) Regulations (Northern Ireland) 2015

CHAPTER 2 N.I. MAKING A DETERMINATION IN RESPECT OF AN INDIVIDUAL'S FINANCIAL RESOURCES

Provision of information N.I.

11.  Where an application, or a further assessment under regulation 21, is made, the client must provide the assessing authority with the information necessary to enable the authority to—

(a) determine whether they satisfy the conditions set out in regulation 5; and

(b) calculate, where relevant, their disposable income and disposable capital and those of any other person concerned.

Calculations N.I.

12.—(1) The assessing authority shall, subject to regulation 5—

(a) calculate the disposable income and disposable capital of the person concerned in accordance with Chapters 3 to 5, as applicable;

(b) calculate any contribution payable in accordance with Part 3; and

(c) where the application is for representation (higher courts), call attention to any special circumstances affecting the manner in which any contribution is to be made under Part 3.

(2) When calculating disposable income for the purposes of regulation 6(2) or (3), the period of calculation shall be one week and, for this purpose, “income” means the total income from all sources which the person concerned received or became entitled to during or in respect of the seven days up to and including the date of their application.

(3) When calculating disposable income for the purposes of regulation 6(4), the period of calculation shall be the period of 12 months next ensuing from the date of the application for a certificate, or such other period of 12 months as the assessing authority may consider to be appropriate in the circumstances of the case.

(4) Where the assessing authority calculates that a client has disposable income or disposable capital of an amount which makes the client ineligible to receive funded services—

(a) the supplier, in respect of advice and assistance or representation (lower courts);

(b) the Director, in respect of representation (higher courts), and subject to regulation 13,

shall refuse the application.

Over-capital cases N.I.

13.—(1) This regulation applies where the application is for representation (higher courts) and the assessing authority has determined the client concerned, having a disposable income which makes that service available to the client, has a disposable capital exceeding the amount prescribed in regulation 6(5).

(2) The Director may approve the application where the Director estimates that the costs which might reasonably be incurred by the client in taking, defending or being a party to any proceedings in respect of which the application was made would exceed the maximum contribution payable by the client under Part 3.

Assessment of resources prior to provision of services N.I.

14.  The supplier shall not provide any funded services to the client prior to the assessment of resources in accordance with regulations 12 and 13.

Guidance given by the Department N.I.

15.  Where the assessing authority is the supplier, in deciding any question under these Regulations the supplier must have regard to any guidance which may from time to time be given by the Department as to the application of the Regulations.

Application in representative, fiduciary or official capacity N.I.

16.  Where the client is acting only in a representative, fiduciary or official capacity, the assessing authority shall, in calculating their disposable income and disposable capital, and the amount of any contribution to be made—

(a) assess the value of any property or estate or the amount of any fund out of which the client is entitled to be indemnified, and the disposable income and disposable capital and maximum contribution of any persons (including the client if appropriate) who might benefit from the outcome of the proceedings; and

(b) unless the authority considers that the client might benefit from the proceedings, disregard their personal resources.

Resources of other persons N.I.

17.—(1) Subject to paragraph (2), in calculating the disposable income and disposable capital of the client, the resources of their partner shall be treated as the client's resources.

(2) The resources of the client's partner shall not be treated as the client's resources if their partner has a contrary interest in—

(a) the matter in respect of which the client is seeking advice and assistance, or

(b) the dispute in respect of which the application is made.

(3) Paragraph (4) applies where an application is made for advice and assistance or representation (lower courts).

(4) Where the client 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, shall 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.

Deprivation or conversion of resources N.I.

18.—(1) Paragraph (2) applies where the client applies for advice and assistance or representation (lower courts).

(2) If it appears to the assessing authority that the person concerned has, with intent to reduce the amount of their disposable income or disposable capital, whether for the purpose of making the client eligible to receive funded services, reducing their liability to pay a contribution or otherwise—

(a) directly or indirectly deprived themselves of any resources, or

(b) converted any part of their resources into resources which under these Regulations are to be wholly or partly disregarded,

those resources shall be treated as part of their resources, or as not so converted, as the case may be.

(3) Paragraph (4) applies where the client applies for representation (higher courts).

(4) If it appears to the assessing authority that the person concerned has, with intent to reduce the amount of their disposable income or disposable capital, whether for the purpose of making the client eligible to receive funded services, reducing their 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 shall be treated as part of their resources, or as not so converted, as the case may be.

Duty to report change in financial circumstances N.I.

19.—(1) This regulation applies where the client applies for representation (higher courts).

(2) The client must immediately inform the Department of any change in their financial circumstances (or those of any person whose resources are to be treated as the client's resources under regulation 17)—

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

(b) which has occurred since any assessment of their resources; and

(c) which might affect the terms on which the client was assessed as eligible to receive funded services.

Amendment of assessment due to error or receipt of new information N.I.

20.—(1) Paragraph (2) applies where the client applies for advice and assistance or representation (lower courts).

(2) Where it appears to the supplier that there has been some error or mistake in the determination of the disposable income, disposable capital or maximum contribution of the person concerned, the supplier may redetermine the disposable income or disposable capital or maximum contribution or, as the case may be, amend the determination and in the latter case the amended determination shall for all purposes be substituted for the original determination.

(3) Paragraph (4) applies where the client applies for representation (higher courts).

(4) Where—

(a) it appears to the assessing authority that there has been an error in the assessment of the resources of the person concerned or the amount of any contribution payable, or in any calculation or estimate upon which such assessment was based; or

(b) new information which is relevant to the assessment has come to light,

the assessing authority mayF1 ... make an amended assessment, and may take such steps as appear equitable to give effect to the amended assessment in relation to any period during which funded services have already been provided.

Textual Amendments

F1 Words in reg. 20(4) omitted (4.3.2019) by virtue of The Civil Legal Services (Financial) (Amendment) Regulations (Northern Ireland) 2019 (S.R. 2019/14), regs. 1, 4

Further assessments N.I.

21.—(1) This regulation applies where the client applies for representation (higher courts).

(2) Where the eligibility of the client was assessed under regulation 6 and it appears that the circumstances of the person concerned may have altered so that—

(a) their normal disposable income may have increased by an amount greater than £750 or decreased by an amount greater than £300, or

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

the assessing authority shall, F2 ... subject to paragraph (8), make a further assessment of that person's resources, and the contribution (if any) payable, in accordance with these Regulations.

(3) Where—

(a) the client was assessed as being eligible for funded services under regulation 5, and

(b) it appears to the assessing authority that the client is no longer in receipt, directly or indirectly, of a benefit or allowance referred to in that regulation,

the assessing authority shall, F3 ... subject to paragraph (8), make a further assessment of that person's resources, and the contribution (if any) payable, in accordance with these Regulations.

(4) For the purposes of the further assessment, the period of calculation shall be the period of one year following the date of the change of circumstances or such other period of one year as the assessing authority considers to be appropriate.

(5) 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 on the date of the request by the Director.

(6) Any capital contribution which becomes payable as a result of a further assessment shall be payable in respect of the cost of the funded services, including costs already incurred.

(7) Where a certificate is discharged under regulation 22(4)(b) of the General Regulations as a result of a further assessment of capital, the Director may require a contribution to be paid in respect of costs already incurred.

(8) The Director may decide not to [F4 make] a further assessment under paragraph (2) or (3) if the Director considers such a further assessment inappropriate, having regard in particular to the period during which funded services are likely to continue to be provided to the client.

Textual Amendments

F2 Words in reg. 21(2) omitted (4.3.2019) by virtue of The Civil Legal Services (Financial) (Amendment) Regulations (Northern Ireland) 2019 (S.R. 2019/14), regs. 1, 5(a)

F3 Words in reg. 21(3) omitted (4.3.2019) by virtue of The Civil Legal Services (Financial) (Amendment) Regulations (Northern Ireland) 2019 (S.R. 2019/14), regs. 1, 5(b)

F4 Word in reg. 21(8) substituted (4.3.2019) by The Civil Legal Services (Financial) (Amendment) Regulations (Northern Ireland) 2019 (S.R. 2019/14), regs. 1, 5(c)