The Criminal Legal Aid (Financial Resources) Regulations 2013
| Jurisdiction | UK Non-devolved |
| Citation | SI 2013/471 |
| Year | 2013 |
2013 No. 471
Legal Aid And Advice, England And Wales
The Criminal Legal Aid (Financial Resources) Regulations 2013
Made 4th March 2013
Laid before Parliament 6th March 2013
Coming into force 1st April 2013
The Lord Chancellor makes the following Regulations1in exercise of the powers conferred by sections 5(4), 21(2) to (7) and 41(1) to (3) of the Legal Aid, Sentencing and Punishment of Offenders Act 20122.
PART 1
General
Citation and commencement
1. These Regulations may be cited as the Criminal Legal Aid (Financial Resources) Regulations 2013 and come into force on 1st April 2013.
Interpretation
2. In these Regulations—
“the Act” means the Legal Aid, Sentencing and Punishment of Offenders Act 2012;
“the 1989 Act” means the Children Act 19893;
“the 1992 Act” means the Social Security Contributions and Benefits Act 19924;
“the 1992 (Northern Ireland) Act” means the Social Security Contributions and Benefits (Northern Ireland) Act 19925;
“the 1995 Act” means the Jobseekers Act 19956;
“the 1995 (Northern Ireland) Order” means the Jobseekers (Northern Ireland) Order 19957;
“the 2001 Act” means the Health and Social Care Act 20018;
“the 2002 Act” means the State Pension Credit Act 20029;
“the 2002 (Northern Ireland) Act” means the State Pension Credit Act (Northern Ireland) 200210;
“the 2002 (Northern Ireland) Direct Payments Act” means Carers and Direct Payments Act (Northern Ireland) 200211;
“the 2007 Act” means the Welfare Reform Act 200712;
“the 2007 (Northern Ireland) Act” means the Welfare Reform Act (Northern Ireland) 200713
“the 2012 Act” means the Welfare Reform Act 201214;
“child” means, unless different provision is made, an individual who is under the age of 18 on the date on which an application is made for a determination under section 15 of the Act (advice and assistance for criminal proceedings) or section 16 of the Act (representation for criminal proceedings);
“criminal legal aid” means advice, assistance and representation made available under sections 15 and 16 of the Act;
“dependant” means an individual (“A”) who—
(a) is wholly or substantially maintained by an individual (“B”) whose financial resources fall to be assessed in accordance with these Regulations; and
(b) the Director considers it equitable to treat as being dependant on B, having regard to A’s income and other resources;
“maintenance payment” means a payment by an individual for the maintenance of—
(a) a former partner;
(b) a child; or
(c) a relative,
who is not a member of the individual’s household;
“partner” means—
(a) an individual’s spouse or civil partner, from whom the individual is not separated due to a breakdown in the relationship which is likely to be permanent;
(b) a person with whom the individual lives as a couple; or
(c) a person with whom the individual ordinarily lives as a couple, from whom they are not separated due to a breakdown in the relationship which is likely to be permanent;
“period of calculation” means—
(a) in Part 2 of these Regulations, the seven days up to and including the date on which the application for a determination under section 15 of the Act is made;
(b) in Part 3 of these Regulations, the period of one year ending on the date on which the application for a determination under section 16 of the Act is made;
“provider” means a person with whom the Lord Chancellor has made an arrangement under section 2(1) of the Act (arrangements) for the provision of criminal legal aid;
“qualifying benefit” means any of the following—
(a) income support paid under section 124 of the 1992 Act15or section 123 of the 1992 (Northern Ireland) Act;
(b) income-based jobseeker’s allowance paid under the 1995 Act or an allowance payable under Part 2 of the 1995 (Northern Ireland) Order;
(c) guarantee credit paid under section 1(3)(a) of the 2002 Act or section 1(3)(a) of the 2002 (Northern Ireland) Act;
(d) income-related employment and support allowance paid under Part 1 of the 2007 Act or section 1(2)(b) of the 2007 (Northern Ireland) Act; and
(e) universal credit paid under Part 1 of the 2012 Act; and
“relative” means—
(a) in the definition of “excluded costs” in regulation 16, a grandparent, brother, sister, aunt, uncle or first cousin, whether of the full blood or half blood or by marriage or civil partnership;
(b) in the Schedule, a partner or child of an individual who is living as a member of that individual’s household; and
(c) elsewhere in these Regulations, a parent, grandparent, grandchild, brother, sister, aunt, uncle, nephew, niece or first cousin, whether of the full blood or half blood, by marriage or civil partnership.
Delegation
3. A function of the Director under these Regulations may be exercised by, or by an employee of, a person authorised for that purpose by the Director16.
Deprivation of resources
4. If it appears to the Director that an individual or that individual’s partner has, with intent to reduce the amount of the individual’s financial resources, whether for the purpose of making the individual eligible to receive criminal legal aid or otherwise—
(a) directly or indirectly deprived themselves of any financial resources;
(b) transferred any financial resources to another person; or
(c) converted any financial resources into resources which under these Regulations are to be wholly or partly disregarded,
the Director must treat such financial resources as part of the individual’s resources, or as not so converted as the case may be.
PART 2
Advice and assistance
Advice and assistance: exceptions from requirement to make a determination in respect of an individual’s financial resources
5.—(1) The Director must make a determination in respect of an individual’s application for relevant advice and assistance without making a determination in respect of that individual’s financial resources.
(2) In this regulation—
“2010 Standard Crime Contract” means the contract so named between the Lord Chancellor and providers for the provision of criminal legal aid17;
“advocacy assistance” means advocacy and assistance provided under section 15(2)(a) or (b) of the Act;
“duty solicitor” means provider who is so authorised under the 2010 Standard Crime Contract;
“relevant advice and assistance” means the following advice and assistance made available under section 15 of the Act—
(a) advocacy assistance before a magistrates’ court or the Crown Court;
(b) advice and assistance provided by a duty solicitor acting as such in accordance with an arrangement with the Lord Chancellor under section 2(1) of the Act;
(c) advice and assistance provided to a volunteer during voluntary attendance;
(d) advice and assistance provided to an individual being interviewed in connection with a serious service offence; and
(e) advice and assistance provided to an individual who is the subject of an identification procedure carried out by means of a video recording, in connection with that procedure.
“serious service offence” means an offence under the Armed Forces Act 200618which cannot be dealt with summarily; and
“volunteer” means an individual who, for the purpose of assisting with an investigation, without having been arrested—
(a) attends voluntarily at a police station, customs office or any other place where a constable is present; or
(b) accompanies a constable to a police station, customs office or any other such place.
Disposable income and disposable capital
6.—(1) Subject to regulation 14, the disposable income of an individual under this Part is that individual’s total income from all sources during the period of calculation after the Director has deducted any amount in accordance with regulations 11 and 12.
(2) Subject to regulation 14, the disposable capital of an individual under this Part is the amount or value of every resource of a capital nature of that individual, after the Director has deducted any amount in accordance with regulation 13.
Advocacy assistance for individuals in prison
7.—(1) The Director must make a determination in accordance with section 21(1) of the Act that an individual’s financial resources are such that the individual is eligible for advocacy assistance under section 15(2)(c) of the Act—
(a)
(a) in relation to the individual’s treatment or discipline in a prison, young offender institution or secure training centre (other than in respect of actual or contemplated proceedings regarding personal injury, death or damage to property); or
(b)
(b) in relation to proceedings before the Parole Board19, where the individual is the subject of the proceedings,
if the circumstances in paragraph (2) are satisfied.
(2) The circumstances are that the individual’s—
(a)
(a) disposable income does not exceed £209; and
(b)
(b) disposable capital does not exceed £3,000.
Other advice and assistance
8. Except where regulations 5 or 7 apply, the Director must make a determination in accordance with section 21(1) of the Act that an individual’s financial resources are such that the individual is eligible for advice and assistance under section 15 of the Act if that individual’s—
(a) disposable income does not exceed £99; and
(b) disposable capital does not exceed £1,000.
Resources of a partner
9. When calculating the disposable income and disposable capital of an individual, the Director must treat the financial resources of that individual’s partner as the individual’s financial resources unless—
(a) the individual’s partner has a contrary interest in the matter in respect of which the individual is seeking advice and assistance; or
(b) the...
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