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

CHAPTER 1 N.I. FINANCIAL ELIGIBILITY LIMITS AND WAIVERS

Determination in respect of an individual's financial resources N.I.

3.—(1) This Part applies for the purposes of determining whether an individual qualifies for civil legal services under Part 2 of the Order in accordance with Article 13(1).

(2) Subject to regulations 4 and 5, the assessing authority must determine whether the individual's financial resources are such that the individual is eligible for civil legal services in accordance with these Regulations.

Exceptions from requirement to make a determination in respect of an individual's financial resources N.I.

4.—(1) The following services shall be available without reference to the client's financial resources—

(a) services consisting of such amount of advice and assistance as is authorised under a contract to be provided without reference to the client's financial resources;

(b) advice and assistance applied for by—

(i) a parent of a child, or a person with parental responsibility for a child within the meaning of the 1995 Order, in respect of whom a Health and Social Care Trust has given notice of potential proceedings under Article 50 of that Order, or

(ii) in the case of an unborn child in respect of whom a Health and Social Care Trust has given notice of potential proceedings under Article 50 of the 1995 Order, any person who, following birth of the child—

(aa) will be the parent of the child, and

(bb) will have parental responsibility for the child within the meaning of that Order;

(c) advice and assistance in potential proceedings or representation in proceedings or potential proceedings before the Mental Health Review Tribunal for Northern Ireland under the Mental Health (Northern Ireland) Order 1986 M1 , where the client's case or application to the Tribunal is, or is to be, the subject of the proceedings;

(d) representation in proceedings under the 1995 Order, applied for by or on behalf of—

(i) a child in respect of whom an application is made for an order under—

(aa) Article 50 (a care or supervision order);

(bb) Article 62 (a child assessment order);

(cc) Article 63 (an emergency protection order); or

(dd) Article 64 (extension or discharge of an emergency protection order);

(ii) a parent of such a child, or a person with parental responsibility for such a child within the meaning of the 1995 Order; or

(iii) a child who is brought before a court under Article 44 (secure accommodation) who is not, but wishes to be, legally represented before the court;

(e) representation in proceedings relating to an appeal against an order made under Article 50 of the 1995 Order, applied for by or on behalf of a person who has been granted representation by virtue of sub-paragraph (d);

(f) representation (higher courts) in proceedings under the Adoption (Northern Ireland) Order 1987 M2 applied for by or on behalf of—

(i) a child in respect of whom an application is made for an order under—

(aa) Article 17 (freeing child for adoption with parental agreement); or

(bb) Article 18 (freeing child for adoption without parental agreement); or

(ii) a parent of such a child, or a person with parental responsibility for such a child within the meaning of the 1995 Order;

(g) representation by a solicitor in Northern Ireland of a person whose application under the Hague Convention or the European Convention has been submitted to the Central Authority in Northern Ireland under section 3(2) or 14(2) of the Child Abduction and Custody Act 1985 M3 ;

(h) representation of a person who—

(i) appeals to a magistrates' court against the registration of, or the refusal to register, a maintenance order made in a Hague Convention country under the Maintenance Orders (Reciprocal Enforcement) Act 1972 M4 ;

(ii) applies for the registration of a judgment under section 4 of the Civil Jurisdiction and Judgments Act 1982 M5 ;

(iii) applies for the registration of a judgment under Council Regulation (EC) No. 44/2001 of 22nd December 2000 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters; or

(iv) applies for either the registration of or the registration and enforcement of a judgment under Council Regulation (EC) No. 2201/2003 of 27th November 2003 on jurisdiction and the recognition and enforcement of judgments in matrimonial matters and the matters of parental responsibility,

and who benefited from complete or partial assistance with, or exemption from, costs or expenses in the country in which the maintenance order was made or the judgment was given;

(i) such services as are funded through grants under Article 12(2)(c) of the Order, except where the terms of the grant provide otherwise;

(j) civil legal services to the extent that the services consist of—

(i) advice and assistance or representation for an individual who is the subject of an application for permission under section 6 of the 2011 Act, in respect of such an application;

(ii) advice and assistance in connection with a TPIM notice for an individual who is subject to that notice;

(iii) advice and assistance for an individual who is subject to a TPIM notice, in respect of an application—

(aa) to vary measures specified in that notice under section 12(2) of the 2011 Act;

(bb) for revocation of that notice in accordance with section 13(3) of the 2011 Act;

(cc) for permission under Schedule 1 to the 2011 Act; or

(iv) representation in respect of TPIM proceedings for an individual who is subject to a TPIM notice;

(k) advice and assistance in the circumstances provided for in paragraph (2) [F1 ;]

[F2 (l) representation of a client who is the subject of proceedings under Article 44 or 45 of the Police and Criminal Evidence (Northern Ireland) Order 1989;

(m) representation of a client who is the subject of proceedings under paragraph 29 or 36 of Schedule 8 to the Terrorism 2000 Act.]

(2) Funded services may be provided where a client—

(a) is arrested and held in custody at a police station or other premises;

(b) is being interviewed in connection with a serious service offence; or

(c) is a volunteer,

and seeks advice and assistance from a solicitor.

(3) In this regulation—

“the 1995 Order” means the Children (Northern Ireland) Order 1995 M6 ;

“the 2011 Act” means the Terrorism Prevention and Investigation Measures Act 2011 M7 ;

“Central Authority” has the same meaning as in sections 3 and 14 of the Child Abduction and Custody Act 1985;

“European Convention” means the convention defined in section 12(1) of the Child Abduction and Custody Act 1985;

“Hague Convention” means the convention defined in section 1(1) of the Child Abduction and Custody Act 1985;

“Hague Convention country” has the same meaning as in the Reciprocal Enforcement of Maintenance Orders (Hague Convention Countries) Order 1993 M8 ;

“the Maintenance Orders (Reciprocal Enforcement) Act 1972” means that Act as applied with such exceptions, adaptations and modifications as are specified in the Reciprocal Enforcement of Maintenance Orders (Hague Convention Countries) Order 1993;

“serious service offence” means any offence under the Army Act 1955 M9 , the Air Force Act 1955 M10 or the Naval Discipline Act 1957 M11 which cannot be dealt with summarily or which appears to an interviewing service policeman to be serious;

“a TPIM notice” means a notice under section 2(1) of the 2011 Act;

“TPIM proceedings” are the proceedings listed at (b) to (g) of the definition of “TPIM proceedings” given in section 30(1) of the 2011 Act;

“volunteer” means an individual who, for the purpose of assisting with an investigation, attends voluntarily at a police station or at any other place where a constable is present or accompanies a constable to a police station or any such other place without having been arrested.

Textual Amendments

F1 Word in reg. 4(1)(k) substituted (11.10.2016) by The Civil Legal Services (Financial) (Amendment) Regulations (Northern Ireland) 2016 (S.R. 2016/338), regs. 1, 3

F2 Reg. 4(1)(l)(m) inserted (11.10.2016) by The Civil Legal Services (Financial) (Amendment) Regulations (Northern Ireland) 2016 (S.R. 2016/338), regs. 1, 4

Marginal Citations

M1 S.I. 1986/595 (N.I. 4)

M2 S.I. 1987/2203 (N.I. 22)

M3 1985 c. 60

M4 1972 c. 18

M5 1982 c. 27

M6 S.I. 1995/755 (N.I. 2)

M7 2011 c. 23

M8 S.I. 1993/593

M9 1955 c. 18

M10 1955 c. 19

M11 1957 c. 53

Individuals in receipt of certain benefits, allowances etc. N.I.

5.—(1) Where the assessing authority is satisfied that the client is in receipt, directly or indirectly, of—

(a) income support paid under section 123 of the Social Security Contributions and Benefits (Northern Ireland) Act 1992 M12 ;

(b) income-based jobseeker's allowance paid under Part 2 of the Jobseekers (Northern Ireland) Order 1995 M13 ;

(c) income-related employment and support allowance paid under Part 1 of the Welfare Reform Act (Northern Ireland) 2007 M14 ; or

(d) the guarantee credit element of state pension credit paid under section 1(3)(a) of the State Pension Credit Act (Northern Ireland) 2002 M15 ,

the client shall, subject to paragraph (2), be eligible for all forms of civil legal services without making (where applicable) any contribution.

(2) In respect of capital, the client's eligibility for advice and assistance is subject to regulation 6(2), and for representation (lower courts) it is subject to regulation 6(3).

Marginal Citations

M12 1992 c. 7

M13 S.I. 1995/2705 (N.I. 15)

M14 2007 c. 2 (N.I.)

M15 2002 c. 14 (N.I.)

Financial eligibility limits – disposable income and disposable capital N.I.

6.—(1) This regulation has effect subject to regulations 4 and 5.

(2) Where a client's weekly disposable income does not exceed £234 and their disposable capital does not exceed £1,000, they shall be eligible for advice and assistance.

(3) Where a client's weekly disposable income does not exceed £234 and their disposable capital does not exceed £3,000, they shall be eligible for representation (lower courts).

(4) Subject to paragraph (5), a client shall be eligible for representation (higher courts) where their yearly disposable income does not exceed—

(a) £10,955, if the representation is sought in connection with taking, defending or being a party to proceedings which include a claim in respect of personal injuries; or

(b) £9,937, in any other case.

(5) The client shall be refused representation (higher courts) where—

(a) their disposable capital exceeds—

(i) £8,560, if the representation is sought in connection with taking, defending or being a party to proceedings which include a claim in respect of personal injuries; or

(ii) £6,750, in any other case; and

(b) it appears they can afford to proceed without representation (higher courts) in accordance with regulation 13(2).

Waiver of eligibility limits and contributions in multi-party actions of significant wider public interest N.I.

7.—(1) Where an application is made for representation in a multi-party action which the Director considers has a significant wider public interest, the Director may, if the Director considers it equitable to do so, do one or both of the following—

(a) disapply the eligibility limits in regulation 6 in respect of those services in relation to specific issues within the multi-party action; and

(b) waive all or part of any contribution payable under Part 3.

(2) In this regulation—

“multi-party action” means any action or actions, in which a number of clients have causes of action, which involve common issues of fact or law arising out of the same cause or event;

“wider public interest” means the potential of proceedings to produce real benefits for individuals other than the client (other than any general benefits which normally flow from proceedings of the type in question).

Waiver of eligibility limits and contributions in certain inquests N.I.

8.—(1) Where an application is made for a relevant determination, the Director may, if the Director considers it equitable to do so, do one or both of the following—

(a) disapply the eligibility limits in regulation 6 in respect of the application; and

(b) waive all or part of any contribution payable under Part 3.

(2) In considering whether to disapply the eligibility limits under paragraph (1), the Director must have regard in particular to any applicable rights under Article 2 of the Human Rights Convention.

(3) In this regulation—

“the Human Rights Convention” has the meaning given to “the Convention” by section 21(1) of the Human Rights Act 1998 M16 ; and

“relevant determination” is a determination under—

(a)

Article 12A(2)(a) of the Order; or

(b)

Article 12A(4)(c) of the Order, to the extent that it relates to services consisting of representation in proceedings at an inquest under the Coroners (Northern Ireland) Act 1959 M17 into the death of a member of the family of the individual who has made the application.

Marginal Citations

M16 1998 c. 42

M17 1959 c. 15 (N.I.)

Waiver of eligibility limits and contributions in cross-border disputes N.I.

9.—(1) This regulation applies to an application by a client domiciled or habitually resident in another Member State for the funding of services in relation to a cross-border dispute.

(2) Where this regulation applies, the [F3 Department] must—

(a) disapply the relevant eligibility limits in regulation 6 if the client proves that they are unable to pay the cost of proceedings in Northern Ireland in relation to the dispute as a result of differences in the cost of living between the client's Member State of domicile or habitual residence and Northern Ireland; and

(b) waive all or part of any contribution payable under Part 3, if and to such extent as the client proves that they are unable to pay the contribution as a result of such differences in the cost of living.

(3) In this regulation—

“cross-border dispute” means a dispute where a client is domiciled or habitually resident in a Member State other than the Member State where the court is sitting or where the decision is to be enforced;

“Member State” means a member state of the European Union except Denmark.

(4) For the purposes of this regulation the Member State in which a client is domiciled shall be determined in accordance with Article 59 of Council Regulation (EC) No. 44/2001 of 22nd December 2000 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters, as amended from time to time and as applied by the Agreement made on 19th October 2005 between the European Community and the Kingdom of Denmark on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters.

Textual Amendments

F3 Word in reg. 9(2) substituted (11.10.2016) by The Civil Legal Services (Financial) (Amendment) Regulations (Northern Ireland) 2016 (S.R. 2016/338), regs. 1, 5

Waiver of eligibility limits in proceedings relating to domestic violence or forced marriage N.I.

10.—(1) This regulation applies to an application by a client for the funding of—

(a) representation (lower courts) in proceedings for, or in relation to, a non-molestation order under Article 20 of the Family Homes and Domestic Violence (Northern Ireland) Order 1998 M18 made by the individual applying for the order or on whose application the order is made; and

(b) advice and assistance or representation (higher courts) in proceedings for a forced marriage protection order under the Forced Marriage (Civil Protection) Act 2007 M19 .

(2) Where this regulation applies the Director may, if the Director considers it equitable to do so, disapply the eligibility limits in regulation 6.

(3) In such applications—

(a) where the weekly disposable income of the client exceeds £234, the contribution payable shall be the excess plus £134; and

(b) where the disposable capital of the client exceeds £3,000, the contribution payable shall be £100.

(4) The contribution payable by a client under paragraph (3) may be in respect of disposable income or disposable capital, or in respect of both.

Marginal Citations

M18 S.I. 1998/1071 (N.I. 6)

M19 2007 c. 20