(1) This Part makes provision about the making and withdrawal of determinations by the Director under section 16 of the Act in relation to Crown Court proceedings.

(2) The Director may only make a determination under this Part if—

(a) the Director has made a determination under Part 3 (which has not been withdrawn) that an individual is eligible in accordance with section 21(1) of the Act for representation under section 16 of the Act in relation to criminal proceedings in the magistrates’ court or any of the conditions in sub-paragraph (b) are met.

(b) The conditions are that-

(i) the individual has been sent to the Crown Court;

(ii) a bill of indictment has been preferred; or

(iii) the order for a retrial has been made by the Court of Appeal or the Supreme Court.

Financial eligibility for representation

31

(1) The Director must make a determination that an individual’s financial resources are such that the individual is eligible in accordance with section 21(1) of the Act for representation under section 16 of the Act where—

(a) that individual’s gross annual income does not exceed £12,475;

(b) that individual’s—

(i) gross annual income is greater than £12,475; and

(ii) disposable annual income is less than £37,500;

(d) the Director is satisfied that individual is, directly or indirectly, properly in receipt of a qualifying benefit.

(2) The Director must make a determination that an individual’s financial resources are such that the individual is not eligible in accordance with section 21(1) of the Act under section 16 of the Act where that individual’s disposable annual income is £37,500 or greater.

Resources to be treated as the individual’s resources

32

(1) Where an individual has a partner (unless the partner has a contrary interest in the proceedings)—

(a) in calculating the financial resources of the individual, the Director must treat the financial resources of the partner as the individual’s financial resources; and

(b) any reference in this Part to the financial resources, financial circumstances or income of the individual includes a reference to the financial resources, financial circumstances or income of the individual’s partner.

(2) Where it appears to the Director that—

(a) another person is or has been substantially maintaining the individual or the individual’s partner; or

(b) any of the financial resources of another person have been made available to the individual or the individual’s partner,

the Director may assess or estimate the value of the maintenance or the financial resources made available and may treat such amounts as the financial resources of the individual.

Assessment of resources: gross annual income

33

(1) The gross annual 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 paragraphs (2) to (2C).

(2) The Director must deduct the following amounts if they are paid to the individual during the period of calculation—

(a) any financial support paid under an agreement for the care of a foster child;

(b) any payments paid out of—

(i) the Independent Living Fund;

(ii) the Independent Living (Extension) Fund;

(iii) the Independent Living (1993) Fund; or

(iv) the Independent Living Fund (2006);

(d) any of the following payments—

(i) attendance allowance paid under section 64 of the 1992 Act or section 64 of the 1992 (Northern Ireland) Act;

(ii) severe disablement allowance paid under section 68 of the 1992 Act or section 68 of the 1992 (Northern Ireland) Act;

(iii) carer’s allowance paid under section 70 of the 1992 Act or section 70 of the 1992 (Northern Ireland) Act;

(iv) disability living allowance paid under section 71 of the 1992 Act or section 71 of the 1992 (Northern Ireland) Act;

(v) constant attendance allowance paid as an increase to a disablement pension under section 104 of the 1992 Act or under section 104 of the 1992 (Northern Ireland) Act;

(vi) housing benefit paid under section 130 of the 1992 Act or section 129 of the 1992 (Northern Ireland) Act;

(vii) council tax benefit paid under section 131 of the 1992 Act;

(viii) any payment made out of the social fund under the 1992 Act or the 1992 (Northern Ireland) Act;

(e) any direct payments made under sections 31 to 33 of the Care Act 2014 (direct payments) or under regulations made under section 49(3) of the Children and Families Act 2014 (personal budgets and direct payments), section 57(1) of the 2001 Act, section 17A of the 1989 Act , section 8(1) of the 2002 (Northern Ireland) Direct Payments Act or sections 50 to 53 of the Social Services and Well-being (Wales) Act 2014;

(f) any reasonable living expenses provided for as an exception to a restraint order under section 41 of the Proceeds of Crime Act 2002;

(g) any pensions paid under the Naval, Military and Air Forces Etc. (Disablement and Death) Service Pensions Order 2006;

(h) any armed forces independence payment paid under the Armed Forces and Reserve Forces (Compensation Scheme) Order 2011; and

(i) any personal independence payment paid under Part 4 of the 2012 Act;

(j) any payment made under the Windrush Compensation Scheme; ...

(k) any Windrush connected payment ;

(l) a payment made under the Social Security (Additional Payments) Act 2022;

(m) a payment made to an individual under section 13 or 15 of the Energy Prices Act 2022;

(n) any Modern Slavery Victim Care Contract or equivalent payment;

(o) any payment of compensation for a miscarriage of justice made under section 133 of the Criminal Justice Act 1988.

(2A) Subject to paragraphs (2B) and (2C), the Director may deduct the following amounts if they are paid to the individual during the period of calculation—

(a) any payment that meets all of the following conditions—

(i) the payment was made to an individual who is a victim of the fire at Grenfell Tower;

(ii) the payment was made to that individual because the individual is a victim of the fire at Grenfell Tower; and

(iii) the payment was not made directly to the individual by an individual known personally to the individual;

(b) any payment of compensation made under the Victims of Overseas Terrorism Compensation Scheme 2012.

(2B) In determining whether to deduct an amount for any payment within paragraph (2A)—

(a) subject to sub-paragraph (b), the Director may deduct the whole of the amount if it is paid to the individual during the period of calculation where the following conditions are met—

(i) the payment was for personal harm or was for a specified purpose; and

(ii) the payment was not for a loss of income;

(b) where a payment for personal harm or a specified purpose includes, in part, an amount for a loss of income—

(i) where the Director is able to ascertain the amount of the part which is for a loss of income, the Director may deduct only the amount of the part which is not for a loss of income; or

(ii) where the Director is not able to ascertain the amount of the part which is for a loss of income, the Director may deduct the whole of the amount,

if it is paid to the individual during the period of calculation.

(2C) In determining whether to deduct an amount for any payment within paragraph (2A), the Director may deduct the whole of the amount if it is paid to the individual during the period of calculation where there is a direct link between—

(a) the loss or harm suffered by an individual for which the payment has been made; and

(b) the legal service the individual has applied for or receives under section 16 of the Act.

(3) When an individual who makes an application for a determination by the Director under section 16 of the Act, has a partner, or a child of that individual, living as a member of their household, paragraph 2A of the Schedule to these Regulations has effect.

Assessment of resources: disposable annual income

34

(1) Where an individual’s gross annual income, calculated in accordance with regulation 33, exceeds £12,475, the Director must calculate the individual’s disposable annual income in accordance with paragraphs (3) and (4).

(2) For the purpose of paragraphs (3) and (4), the Director must calculate the gross annual income of an individual as if regulation 33(3) did not apply.

(3) The Director must deduct the following amounts from the individual’s gross annual income—

(a) any income with which the individual is restrained from dealing by order of the High Court or Crown Court;

(b) any amounts due under a contribution order in other criminal proceedings in respect of that individual; and

(c) the amounts listed in paragraph (4), if such amounts are paid or payable by that individual during the period of calculation.

(4) The Director must deduct—

(a) any income tax;

(b) any estimated contributions under Part 1 of the 1992 Act or the 1992 (Northern Ireland) Act;

(d) either—

(i) any annual rent or annual payment (whether of interest or capital) in respect of a mortgage debt or hereditable security in respect of the individual’s only or main dwelling, less any housing benefit paid under section 130 of the 1992 Act or section 129 of the 1992 (Northern Ireland) Act; or

(ii) the annual cost of the individual’s living accommodation;

(e) any child care costs;

(f) the amount, where reasonable, of any maintenance payments; and

(g) an amount representing cost of living expenses, being either—

(i) £5,676; or

(ii) where the individual has a partner or a child living in the individual’s household, the amount calculated in accordance with paragraph 3A of the Schedule to these Regulations.

(5) For the purpose of paragraph (4)(d), where an individual resides in more than one dwelling, the Director must decide which dwelling is the main dwelling.

Documentary evidence of financial resources

35

The Director may at any time require an individual to provide information and documentary evidence in relation to a determination under section 16 of the Act.

Renewal of application

36

Where the Director makes a determination in accordance with section 21(1) of the Act that an individual’s financial resources are such that the individual is not eligible for representation under section 16 of the Act, that individual may only renew the application if—

(a) there is a change in the individual’s financial circumstances which might affect whether that individual is eligible in accordance with section 21(1) of the Act for representation under section 16 of the Act; or

(b) the determination that the individual’s financial resources are such that the individual is not eligible in accordance with section 21(1) of the Act for representation under section 16 of the Act has been withdrawn in accordance with regulation 37.

Review of decision

37

(1) Where the Director makes a determination in accordance with section 21(1) of the Act that an individual’s financial resources are such that the individual is not eligible for representation under section 16 of the Act, that individual may apply to the Director for a review of the decision on the grounds that—

(a) there has been a miscalculation of the individual’s financial resources or an administrative error; or

(b) the individual does not have sufficient financial resources to pay for the cost of legal representation, notwithstanding the Director’s determination in accordance with section 21(1) of the Act that the individual is not eligible for representation under section 16 of the Act.

(2) An application for a review must be made in a form specified by the Lord Chancellor and must include any written representations supporting the application.

(3) Where the grounds of the application are those mentioned in paragraph (1)(b)—

(a) the individual must supply—

(i) full particulars of the individual’s income and expenditure; and

(ii) a certificate from a provider as to the likely costs of the proceedings to the individual; and

(b) the individual must make the application within—

(i) 21 days of the date on which the Director makes the determination referred to in paragraph (1); or

(ii) such other period as may be agreed by the Director and the individual.

(4) The individual must provide such further information and documents as the Director may request in relation to the review within fourteen days after the date of the request.

(5) A review may be conducted without a hearing unless the Director directs otherwise.

(6) The Director must consider the application and any written representations and may—

(a) confirm or amend the determination which is the subject of the review;

(b) withdraw the determination which is the subject of the review; or

(7) Notwithstanding regulation 31(2), in relation to an application for a review under paragraph (1)(b), the Director may substitute a new determination that the individual’s financial resources are such that the individual is eligible in accordance with section 21(1) of the Act for representation under section 16 of the Act.

Withdrawal of a determination

38

Where the Director withdraws a determination in accordance with this Part, the Director must provide written notification of the withdrawal to—

(a) the individual in whose favour the original determination was made;

(b) any provider named in the representation order which records the determination; and

PART 5 — Representation: other proceedings

Representation in other criminal proceedings

39

In any criminal proceedings other than—

(a) magistrates’ court proceedings; and

(b) Crown Court proceedings;

the relevant authority must make a determination that the individual’s financial resources are such that the individual is eligible in accordance with section 21(1) of the Act for representation under section 16 of the Act.

2A

For the purpose of regulation 33(3), the Director must calculate an individual’s gross annual income by dividing the amount calculated in regulation 33(1) by the relevant sum.

3A

For the purpose of regulation 34(4)(g)(ii), the Director must calculate an individual’s cost of living expenses by multiplying £5,676 by the relevant sum.

4

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