The Legal Aid in Criminal and Care Proceedings (General) Regulations 1989

15

• (1) In computing the capital of the person concerned, there shall be included the amount or value of every resource of a capital nature belonging to him on the date of the assessment.

• (2) In so far as any resource of a capital nature does not consist of money, its amount or value shall be taken to be–

• (a) the amount which that resource would realise if sold in the open market, or if there is only a restricted market for the resource, the amount which it would realise in that market, after deduction of any expenses incurred in the sale, or

• (b) if such an amount cannot be ascertained, an amount which appears to the proper officer to be reasonable.

16

In computing the capital of the person concerned, there shall be disregarded–

• (a) any savings of mobility allowance paid under the Social Security Act 1975 which the person concerned intends to use in connection with mobility;

• (b) for a period not exceeding 12 months from the date of receipt, any arrears of–

• (i) attendance or mobility allowance paid under the Social Security Act 1975–1988;

• (ii) income support or family credit; and

• (c) any payments made out of the social fund under section 32 of the Social Security Act 1986.

17

Except where it is reasonable in the circumstances so to do, no sum shall be included in the amount of the capital of the person concerned in respect of the value of the assets of any business owned in whole or in part by him.

18

Save in exceptional circumstances, no sum shall be included in the amount of the capital of the person concerned in respect of–

• (a) household furniture and effects of the main or only residence occupied by him;

• (b) articles of personal clothing; and

• (c) tools and equipment of his trade.

19

In computing the amount of the capital of the person concerned, the value of any interest in the main or only residence in which he resides shall be wholly disregarded.

20

In computing the capital of the person concerned, there may also be disregarded such an amount of capital (if any) as the proper officer decides to disregard taking into account the nature of the capital or any other circumstances of the case.

SCHEDULE 4 — CONTRIBUTIONS

Contributions from disposable income

The weekly instalment of contribution payable by the applicant or the appropriate contributor where his disposable income falls within a range specified in the first column of the following table, is the amount specified in relation to that range in the second column.

The weekly instalment of contribution shall be increased by £1 for each £4 or part of £4 by which average weekly disposable income exceeds £82.

Contributions from disposable capital

The contribution from capital payable by the applicant or the appropriate contributor shall be such an amount as is equal to the amount by which his disposable capital exceeds £3,000.

Signed

Mackay of Clashfern, C. — Dated 1st March 1989

We consent,

Kenneth Carlisle — Alan Howarth — Two of the Lords Commissioners of Her Majesty’s Treasury — Dated 3rd March 1989

Explanatory note

(This note is not part of the Regulations)

These Regulations replace, with amendments, the Legal Aid in Criminal Proceedings (General) Regulations 1968 (as subsequently amended). These Regulations govern the provision of representation under Part V and Sections 27 and 28 of the Legal Aid Act 1988 (legal aid in criminal and care proceedings).

These Regulations make provision for the assessment of the financial resources of the applicant or the appropriate contributor in order to determine eligibility to receive legal aid and to determine the contribution payable towards the cost of providing representation in the proceedings in respect of which the application for a legal aid order is made.

The main changes made are as follows:

• (a) a single form of application for a legal aid order is prescribed, the use of which is mandatory (regulation 4 and Schedule 2 Part I);

• (b) court clerks are given power to refuse an application for a legal aid order subject to a right to renew the application (regulations 11, 14, 18, and 21);

• (c) the resources of persons living together as husband and wife are to be treated as if those persons were married (regulations 26, 37 and Schedule 3, paragraph 2);

• (d) a solicitor assigned under a legal aid order who instructs counsel is to provide counsel with a copy of the legal aid order (regulation 40);

• (e) Parts I to VI of the Regulations are applied, subject to a number of modifications, to the grant of representation in care proceedings and, in exercise of the power conferred by section 27(2), section 27(1)(f) of the Act is varied to exclude from the categories of care proceedings for the purposes of which representation is available under sections 27 and 28 of the Act appeals from decisions of juvenile courts to the High Court (regulations 56 and 57).

Footnotes

[^f00001]: 1988 c. 34; section 43 is an interpretation provision and is cited because of the meanings assigned to the words “prescribed” and “regulations”.

[^f00002]: S.I. 1989/343.

[^f00003]: S.I. 1989/339.

[^f00004]: 1986 c. 50.

[^f00005]: 1980 c. 5.

[^f00006]: 1974 c. 47.

[^f00007]: 1985 c. 61; section 42 was amended by the Legal Aid Act 1988 (c. 34), section 33.

[^f00008]: 1987 c. 38; section 4 was amended by the Criminal Justice Act, 1988 (c. 33), section 144(2).

[^f00009]: 1980 c. 43; section 6(2) was amended by the Criminal Justice Act 1982 (c. 48), section 61.

[^f00010]: 1968 c. 19; section 7 was amended by the Criminal Justice Act, 1988 (c. 33), section 43.

[^f00011]: 1980 c. 43.

[^f00012]: 1933 c. 12; section 55 was amended by the Criminal Justice Act 1982 (c. 48), section 26.

[^f00013]: 1969 c. 54; section 3 was amended by Courts Act 1971 (c. 23), section 56, Schedule 8 paragraph 59(1), Schedule 9 Part I, Schedule 11 Part IV, by the Criminal Law Act 1977 (c. 45), sections 58(3), 65(5), Schedule 13, by the Criminal Justice Act 1982 (c. 48), section 27, by the Prosecution of Offences Act 1985 (c. 23), section 27 and by S.I. 1982/1109, rule 6(2), Schedule 3 Part II paragraph 6.

[^f00014]: S.I. 1989/343.

[^f00015]: 1969 c. 54; section 1 was amended by the Children Act 1975 (c. 72), section 108, Schedule 3 paragraph 67, by the Education Act 1981 (c. 60), section 21, Schedule 3 paragraph 9, by the Mental Health Act 1983 (c. 20), section 148, Schedule 4 paragraph 26(a)(b) and by the Health and Social Services and Social Security Adjudications Act 1983 (c. 41), Schedule 2 paragraph 10.

[^f00016]: 1980 c. 5; section 12E was inserted by Health and Social Services and Social Security Adjudications Act 1983 (c. 41), Schedule 1 Part I, paragraph 1.

[^f00017]: 1975 c. 14; 1988 c. 7.

[^f00018]: 1975 c. 14; section 61 was amended by the Social Security Act 1986 (c. 50), section 39, Schedule 3, paragraph 6.

[^f00019]: 1986 c. 50.

[^f00020]: 1986 c. 50; section 32 was amended by the Social Security Act 1988 (c. 7), section 18, Schedule 3, paragraphs 1 to 7, Schedule 5.

[^f00021]: 1975 c. 60.

[^f00022]: 1975 c. 14; Part IV of Schedule 4 to the Social Security Act 1975 was amended by S.I. 1989/43.

[^f00023]: S.I. 1987/1967.