The Civil Legal Aid (Scotland) Regulations 1996

• (b) in the case of a dependent child or a dependent relative, at a rate equivalent to the amount specified in paragraph 2 of Part I of Schedule 2 to the Income Support (General) Regulations 1987[^f00038] appropriate to the age of the child or relative at the date when the computation period began:

• Provided that the Board may reduce such rate by taking into account the income and other resources of the dependent child or other dependent to such extent as appears to the Board to be just and equitable.

• (2) In ascertaining whether a child is a dependent child and whether a person is a dependent relative regard shall be had to their income and other resources.

14

If the person concerned is making and, throughout such period as the Board may consider adequate, has regularly made bona fide payments for the maintenance of a spouse who is living apart, of a former spouse, of a child or of a relative who is not (in any of such cases) a member of the household of the person concerned, there shall be a deduction at the rate of such payments or at such rate, not exceeding the rate of such payments, as in all the circumstances is reasonable.

15

Where the person concerned must provide for any other matter the Board may make an allowance of such amount as it considers to be reasonable in the circumstances of the case.

16

In computing the income from any source there shall be disregarded such amount, if any, as the Board considers to be reasonable having regard to the nature of the income or to any other circumstances of the case.

SCHEDULE 3 — RULES FOR COMPUTING DISPOSABLE CAPITAL

1

Subject to the provisions of these Regulations, there shall be included in the computation of the amount of the capital of the person concerned the amount or value of every resource of a capital nature ascertained as on the date of the application for legal aid:

2

So far as any resource does not consist of money, the amount or value thereof shall be taken to be the amount which that resource would realise if sold in the open market or, if there is only a restricted market for that resource, the amount which it would realise in that market, or shall be taken to be the amount or value thereof assessed in such manner as appears to the Board to be just and equitable.

3

Where money is due to the person concerned, whether immediately payable or otherwise and whether the payment thereof is secured or not, the value shall be taken to be the present value thereof.

4

If the person concerned stands in relation to a company in a position analogous to that of a sole owner or partner in the business of that company, the Board may, in lieu of ascertaining the value of his stocks, shares, bonds or debentures in that company, treat that person as if he were such sole owner or partner and compute the amount of his capital in respect of that resource in accordance with the succeeding rule.

5

Where the person concerned is or is to be treated as the sole owner of or a partner in any business, the value of such business or his share therein to that person shall be taken to be either–

• (a) such sum, or his share of such sum, as the case may be, as could be withdrawn from the assets of such business without substantially impairing the profits of such business or the normal development thereof; or

• (b) such sum as that person could borrow on the security of his interest in such business without injuring the commercial credit of that business;

whichever is the greater.

6

The value of any interest, whether vested or contingent, of the person concerned in the fee of any heritable or moveable property forming the whole or part of any trust or other estate, shall be computed by the Board in such manner as appears to it to be both equitable and practicable.

7

In computing the amount of capital of the person concerned where that person is in receipt of income support under section 124 of the 1992 Act, there shall be disregarded any amount which exceeds the sum for the time being specified as the disposable capital limit under section 17(2)(b) of the Act.

8

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

• (a) any payment which is made out of the social fund under section 138 of the 1992 Act;

• (b) so much of any back to work bonus received under section 26 of the Jobseekers Act 1995 as is by virtue of that section to be treated as payable by way of a jobseeker’s allowance.

9

Save in exceptional circumstances, nothing shall be included in the amount of capital of the person concerned in respect of–

• (a) the household furniture and effects of the dwelling house occupied by him;

• (b) articles of personal clothing; and

• (c) the personal tools and equipment of his trade, not being part of the plant or equipment of a business to which the provisions of rule 5 of this Schedule apply.

10

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

• (2) Where the person concerned resides in more than one dwelling in which he has an interest, the Board shall decide which is the main dwelling and shall take into account in respect of the value to him of any interest in a dwelling which is not the main dwelling any sum which might be obtained by borrowing money on the security thereof.

11

Where the person concerned has received or is entitled to receive from a body of which he is a member a sum of money by way of financial assistance towards the cost of the proceedings in respect of which legal aid is applied for, such sum shall be disregarded.

12

The value of any life assurance or endowment policy shall be taken to be the amount which the person concerned could readily borrow on the security thereof.

13

Where under any statute, bond, agreement, indemnity, guarantee or other instrument the person concerned is under a contingent liability to pay any sum or is liable to pay a sum not yet ascertained, an allowance shall be made of such an amount as is reasonably likely to become payable within the 12 months immediately following the date of application for legal aid.

14

An allowance may be made in respect of any debt owed by the person concerned (other than a debt secured on the dwelling or dwellings in which he resides) to the extent to which the Board considers reasonable, provided that the person concerned produces evidence to its satisfaction that the debt or part of the debt will be discharged within the twelve months immediately following the date of the application.

15

• (1) Where the person concerned is of pensionable age and his annual disposable income (excluding any net income derived from capital) is less than the figure prescribed in section 17(2)(a) of the Act there shall be disregarded the amount of capital as specified in the following table:–

• (2) In this Schedule “pensionable age” means–

• (a) in the case of a man, the age of 65; and

• (b) in the case of a woman, the age of 60.

16

In computing the amount of capital of the person concerned there shall be wholly disregarded any capital payment received from any source which is made in relation to the subject matter of the dispute in respect of which the application for legal aid has been made.

17

In computing the amount of capital there shall be disregarded such an amount of capital, if any, as the Board in the circumstances of the case may in its discretion decide.

Signed

Lindsay — Parliamentary Under Secretary of State, Scottish Office — 12th September 1996

We concur,

Kenneth Clarke — Patrick McLoughlin — Two of the Lords Commissioners of Her Majesty’s Treasury — 19th September 1996

Explanatory note

(This note is not part of the Regulations)

These Regulations consolidate with amendments and revoke the Civil Legal Aid (Scotland) Regulations 1987 and the Regulations amending those Regulations.

The main amendments are as follows:–

• (a) in consequence of the Children (Scotland) Act 1995 (“the 1995 Act”)–

• (i) the definition of “legal representative” has been amended to include a person having parental responsibilities in relation to a child (regulation 2(1));

• (ii) in regulation 6(1) the previous reference to “parent or guardian” has been substituted to allow an application for advice and assistance to be made on behalf of a child by any person having parental responsibilities in relation to the child;

• (iii) provision is made for legal aid to be made available for urgent work in relation to various orders under section 11 of the 1995 Act and for Child Welfare Hearings under the Ordinary Cause Rules 1993 (regulation 18(2)(j), (n), (p) and (q));

• (b) income-based jobseeker’s allowance has been included as one of the specified exceptions to the right to prior payment out of property recovered or preserved (regulation 33(a)(v));

• (c) income-based jobseeker’s allowance, a back to work bonus treated as payable by way of a jobseeker’s allowance and any payment made under the Earnings Top-up Scheme are excluded from the computation of income (paragraph 5 of Schedule 2); and

• (d) any back to work bonus treated as payable by way of a jobseeker’s allowance is excluded from the computation of capital (paragraph 8(b) of Schedule 3).

Footnotes

[^f00001]: 1986 c. 47; subsection (2B) was inserted in section 17 by the Law Reform (Miscellaneous Provisions) (Scotland) Act 1990 (c. 40), Schedule 8, paragraph 36(6).

[^f00002]: 1992 c. 4.

[^f00003]: 1995 c. 36.

[^f00004]: 1975 c. 71.

[^f00005]: 1979 c. 33.

[^f00006]: Section 13(2) was amended by the Law Reform (Miscellaneous Provisions) (Scotland) Act 1990, Schedule 8, paragraph 36(3).

[^f00007]: 1980 c. 46; section 25A was inserted by the Law Reform (Miscellaneous Provisions) (Scotland) Act 1990, section 24, and was amended by the Criminal Procedure (Consequential Provisions) (Scotland) Act 1995 (c. 40), Schedule 4, paragraph 31.

[^f00008]: 1973 c. 41.

[^f00009]: Section 14 was amended by the Law Reform (Miscellaneous Provisions) (Scotland) Act 1990, Schedule 8, paragraph 36(4) and (5).

[^f00010]: 1984 c. 36.

[^f00011]: The Ordinary Cause Rules 1993 are contained in Schedule 1 to the Sheriff Courts (Scotland) Act 1907 (c. 51); Schedule 1 was substituted by S.I. 1993/1956 and relevantly amended by S.I. 1996/2167.

[^f00012]: Section 18 was amended by the Legal Aid Act 1988 (c. 34), Schedule 4, Part II, paragraph 7; section 19 was amended by the Legal Aid Act 1988, Schedule 4, Part II, paragraph 8.

[^f00013]: 1985 c. 37.

[^f00014]: 1976 c. 39; section 5 was repealed on 1st September 1986 by Schedule 2 to the Family Law (Scotland) Act 1985 (c. 37) subject to a saving in section 28(3) of that Act.

[^f00015]: 1950. c.37.

[^f00016]: 1972 c. 18.

[^f00017]: 1982 c. 27.

[^f00018]: Section 129 was amended by the Local Government Finance Act 1992 (c. 14), Schedule 9, paragraph 2, by the Social Security (Incapacity for Work) Act 1994 (c. 18), section 10 and Schedule 1, paragraph 32 and by the Jobseekers Act 1995 (c. 18), Schedule 2, paragraph 33.

[^f00019]: Section 124 was amended and repealed in part by the Jobseekers Act 1995, Schedule 2, paragraph 30 and Schedule 3.

[^f00020]: Section 128 was amended by the Jobseekers Act 1995, Schedule 2, paragraph 33.

[^f00021]: 1995 c. 18.

[^f00022]: Section 130 was amended by the Local Government Finance Act 1992, Schedule 9, paragraph 3 and by the Local Government etc. (Scotland) Act 1994 (c. 39), Schedule 13, paragraph 174(4).

[^f00023]: 1991 c. 48.

[^f00024]: Section 8 was amended by the Law Reform (Miscellaneous Provisions) (Scotland) Act 1990 (c. 40), Schedule 8, paragraph 34 and by the Pensions Act 1995 (c. 26), section 167.

[^f00025]: 1987 c. 18.

[^f00026]: Subsection (2A) was inserted in section 17 by the Law Reform (Miscellaneous Provisions) (Scotland) Act 1990, Schedule 8, paragraph 36(6).

[^f00027]: S.I. 1994/1443.

[^f00028]: S.I. 1976/1897.

[^f00029]: 1985 c. 60.

[^f00030]: 1982 c. 27.

[^f00031]: This Scheme, which applies only in certain areas of Great Britain, is an extra statutory Scheme introduced by the Secretary of State for Social Security having effect on 8th October 1996. Copies of the rules of the Scheme may be obtained from the Customer Service’s Manager, Earnings Top-up, Norcross, Blackpool, FY5 3TA and will be available for inspection at the Department of Social Security, 9th Floor, Adelphi, 1-11 John Adam Street, London, WC2N 6HD and Offices of the Benefits Agency and Employment Job Centres which serve the areas specified in Schedule 1 to the Scheme.

[^f00032]: 1993 c. 48.

[^f00033]: 1992 c. 14.

[^f00034]: 1994 c. 39.

[^f00035]: 1970 c. 35.

[^f00036]: S.I. 1987/1967; paragraph 1(3) was substituted by S.I. 1996/206.

[^f00037]: The allowance specified was amended by S.I. 1995/559.

[^f00038]: The amount specified was amended by S.I. 1995/559.