Legal Aid Eligibility Assessment Daniel Bacon (unfinished)
This guidance is based on rules as of April 2018.
This guidance is for Controlled Work. This is a non-contributory form of civil legal service.
Is client properly in receipt of a passporting benefit, directly, or indirectly where included in the benefit claim of a partner
If YES, then no need to consider the income tests. (Reg. 6(2) Civil Legal Aid (Financial Resources and Payment for Services) Regulations 2013).
The Income Tests
Calculate income from the ONE CALANDER MONTH prior to application (i.e. assessment date 5th April, assessment period 6th March – 5th April inclusive)
The client’s partner’s income must be aggregated with the client’s.
[UNLESS that partner has a contrary legal interest in the matter in which the client is seeking legal aid].
- Gross income test
- What is gross income?
Gross income is income before deductions are made.
Excludes housing benefit.
Income includes money the client earns, money entitled to accrue to the client, money received by the client from any other source (including assistance from friends or relatives).
Income includes any payments made directly to third parties by another person on behalf of the client (e.g. another person paying the client’s bills / rent / mortgage).
Non-passporting benefits received must be included as income (including Working Tax Credit, Child Tax Credit), EXCEPT:
- Disability Living Allowance
- Attendance Allowance (including where paid as a constant increase to disability pension)
- Any payment made out of the social fund
- Carer’s Allowance
- Community Care / SEN direct payments
- Back to Work bonus IF treated as payable as Jobseeker’s Allowance
- Severe Disability Allowance
- Exceptionally Severe Disability Allowance
- Military disability / death pensions
- Foster child support payments in excess of the relevant dependant’s allowance
- Payments made out of the independent Living Fund / Welsh Independent Living Grant
- Personal Independent Payment
- Payments on Account of Benefits and Budget Advances
- Transfer Advances of Universal Credit (Reg. 17 Universal Credit (Transitional Provisions) Regulations 2014).
[If benefits or other payments which would normally be included as income are payable to a victim of the Grenfell Tower fire BECAUSE they were a victim of the Grenfell Tower fire, AND are not being paid by an individual personally known to the client, then these benefits or other payments should not, at the discretion of the provider, be included as income].
Income includes money that became due within the period of calculation but which has not yet been received.
Income includes money received from parents, student grants, and student bursaries.
If self-employed, income is the drawings taken from the business for personal use.
A client is not allowed to deliberately deprive themselves of income in order to qualify for legal aid. Income disposed of must still be taken into account.
An annual bonus is NOT income – it is capital.
- Calculating monthly income
If a payment is made weekly, multiply by 52 and divide by 12.
If a payment is made four-weekly, multiply by 13 and divide by 12.
In both cases, this gives you the monthly income figure. Add up all the appropriate monthly income figures.
The monthly gross income cap is £2657, plus £222 for the fifth and each subsequent dependent child. For the purposes of this section, a dependent child is one for whom Child Benefit is received by the client or his partner.
If the total monthly gross income is higher that the appropriate cap, the client is ineligible.
If the client is to start a new job in the next month and earnings will mean the client will exceed the cap, then you must base your assessment on the next calendar month and refuse the application. The same is true for other major changes in circumstances (e.g. divorce).
- Disposable income test
- What is disposable income?
Disposable income is total monthly gross income minus deductions.
If the client has a partner (see definition above), deduct £181.41 (regardless of contrary interests, except for couples going through divorce or separation).
If the client has a dependent child or a dependent relative living in the same household, deduct £290.70 per child or relative MINUS the amount of independent income or benefits that child or relative receives. If the dependant relative’s capital is over £8,000, then no deduction should be made for the purposes of calculating the client’s disposable income. (If the parents etc. are living in the same household but are separated, dependence allowance for the child can only be applied in respect of ONE of the parents’ Legal Aid applications – this will be the parent who receives child benefit for the child or (if no child benefit is received) then the parent who can show they have the primary caring role from their own money).
For the purposes of this section, a dependent child is one for whom the parent who receives child benefit for the child or (if no child benefit is received) then the parent who can show they have the primary caring role from their own money.
If the client pays another person maintenance payments (former partner / child / relative), then these payments are to be deducted (whether they are made by court order, CSA ruling, or voluntary agreement). (Including payment of bills or mortgage payments).
Income tax paid that month is to be deducted
- For self-employed, this is notional: the previous year’s annual income tax bill divided by 12. If none available for any reason then deduct nothing.
National Insurance paid that month is to be deducted
- For self-employed, this is notional: deduct £12.78.
Rent or mortgage payments (as per tenancy / mortgage agreement) for main dwelling MINUS housing benefit received is to be deducted up to a limit of £545 if there are no dependents as per this section – if there are dependents then no limit exists – MINUS any amounts clearly identifiable as for water rates / council tax / insurance premiums.
Additional rent or mortgage payments made to pay off arrears are to be deducted but only if actually paid, up to the same limit of £545 if applicable (see above), but ONLY IF this is being paid not only in order to qualify for Legal Aid.
For lodgers: only deduct that amount paid for lodging, NOT board. If impossible to identify, assume 50:50 split.
If in receipt of a wage (either claimant or aggregated partner), deduct £45 for each such person in receipt of wage. = Nominal employment-related expenses (Reg. 27)
If claimant or partner has a child 15 years or younger (OR older but disabled) and is away from home for work or study and receives an income for that work or study, the actual monthly expenditure on childcare incurred because that person is away from home may be deducted. Only deduct once for claimant OR partner.
Income from criminal legal aid income contribution order to be disregarded (Reg. 29)
Gross income minus the above deductions = disposable income.
Disposable income must not exceed £733 pcm.
- Disposable capital
(i) What is capital?
- Household furniture
- Tools and implements of trade
- Back to work bonus (s26 Jobseekers Act 1995) as far as payable by way of JSA
- Certain payments under statute (social fund payments, arrears of payments under Children Act 1984 etc, social security payments etc. – see Lord Chancellor’s guidance)
- Capital value of claimant’s business (self-employed)
- Capital value of equitable interest in trust capital (although any disbursements of trust capital OR payments of trust interest should be counted)
- Payment made from the Independent Living Fund (2006)
- Payments made by virtue of Grenfell Tower victimhood (see above, and Reg. 40(2)
Cars etc. in regular use have nominal NIL value – unless of exceptional value (Reg 31(a) – value as if sold today)
If asset owned jointly with partner where contrary interests exist, assume 50:50 split of equity unless some other split is documented.
For joint bank account with partner where contrary interests exist, include ENTIRE amount if client has access to entire amount UNLESS there is some agreement to split the account 50:50, then include only half.
Client’s main dwelling must be included (UNLESS the subject of the dispute) as per the following calculation:
- value if sold today on the open market
- MINUS the “MORTGAGE DISREGARD” – the mortgage or loan secured by a charge registered on the property up to maximum of £100,000
- MINUS the “EQUITY DISREGARD” (£100,000)
The mortgage disregard is max. £100,000 ALTOGETHER even if there are other properties, and for second and third properties etc. there is no equity disregard
If the asset is the subject matter of dispute then up to £100,000 of its value is to be disregarded, UNLESS it is jointly owned in which case split 50:50 or in equitable shares