The Civil Legal Aid (Assessment of Resources) Regulations 1989

Regulation 4

SCHEDULE 2 COMPUTATION OF INCOME

1.  The income of the person concerned from any source shall be taken to be the income which that person may reasonably expect to receive (in cash or in kind) during the period of computation and, in the absence of other means of ascertaining it, shall be taken to be the income received during the preceding year.

2.  The income in respect of any emolument, benefit or privilege which is received otherwise than in cash shall be estimated at such sum as in all the circumstances is just and equitable.

3.—(1) The income from a trade, business or gainful occupation other than an employment at a wage or salary shall be deemed to be the profits therefrom which have accrued or will accrue to the person concerned in respect of the period of computation, and, in computing such profits, the assessment officer may have regard to the profits of the last accounting period of such trade, business or gainful occupation for which accounts have been prepared.

(2) In ascertaining the profits under paragraph (1), there shall be deducted all sums necessarily expended to earn those profits, but no deduction shall be made in respect of the living expenses of that person or of any member of his family or household, except in so far as such member of his family or household is wholly or mainly employed in such trade or business and such living expenses form part of his remuneration.

4.—(1) In computing the income of the person concerned, there shall be deducted the total amount of tax which it is estimated would be payable by the person concerned if his income (as computed in accordance with paragraphs 1 to 3 above but not taking into account the provisions of regulation 5) were his income for a fiscal year and his liability for tax in that year were to be ascertained by reference to that income and not by reference to his income in any other year or period.

(2) For the purposes of this paragraph, tax shall be estimated at the rate provided by and after making all appropriate allowances, deductions or reliefs in accordance with the statutory provisions relating to income tax in force for the fiscal year in which the legal aid application is made.

5.  Where the person concerned or his spouse is in receipt of income support paid under the Social Security Act 1986(1), the person concerned shall, for the period during which income support is received, be deemed to have a disposable income which does not exceed the figure for the time being specified in regulation 4(3)(a).

6.  There shall be disregarded–

(a) attendance allowance paid under the Social Security Acts 1975–1988(2);

(b) mobility allowance paid under the Social Security Acts 1975–1988;

(c) constant attendance allowance paid as an increase to a disablement pension under section 61 of the Social Security Act 1975(3); and

(d) any payment made out of the social fund under section 32 of the Social Security Act 1986(7).

7.  Where the income of the person concerned consists, wholly or in part, of a wage or salary from employment, there shall be deducted–

(a) the reasonable expenses of travelling to and from his place of employment;

(b) the amount of any payments reasonably made for membership of a trade union or professional organisation; and

(c) where it would be reasonable so to do, an amount to provide for the care of any dependant child living with the person concerned during the time that person is absent from home by reason of his employment; and

(d) the amount of any contribution paid, whether under a legal obligation or not, to an occupational pension scheme within the meaning of the Social Security Pensions Act 1975(4) or to a personal pension scheme within the meaning of the Social Security Act 1986.

8.  There shall be a deduction in respect of contributions payable by the person concerned (whether by deduction or otherwise) under the Social Security Acts 1975 to 1988, of the amount estimated to be so payable in the 12 months following the application for a certificate.

9.—(1) In the case of a householder, there shall be a deduction in respect of rent of the main or only dwelling of the amount of the net rent payable, or such part thereof as is reasonable in the circumstances, and the assessment officer shall decide which is the main dwelling where the person concerned resides in more than one dwelling in which he has an interest.

(2) For the purposes of this paragraph, “rent” includes–

(a) the annual rent payable; and

(b) a sum in respect of yearly outgoings borne by the householder including, in particular, rates, a reasonable allowance towards any necessary expenditure on repairs and insurance and any annual instalment (whether of interest or of capital) payable in respect of a mortgage debt or heritable security charged on the house in which the householder resides or has an interest;

and, in calculating the amount of rent payable, any housing benefit paid under the Social Security Act 1986 shall be deducted from the amount of rent payable.

(3) In this paragraph, the expression “net rent” means the rent less any proceeds of sub-letting any part of the premises in respect of which the said rent is paid or the outgoings are incurred except that, where any person or persons other than the person concerned, his or her spouse or any dependant of his or hers is accommodated, otherwise than as a sub-tenant, in the premises for which the rent is paid, the rent may be deemed to be reduced by an amount reasonably attributable to such other person or persons.

10.  If the person concerned is not a householder, there shall be a deduction in respect of the cost of his living accommodation of such amount as is reasonable in the circumstances.

11.—(1) Subject to paragraph (2), in computing the income of the person concerned there shall be a deduction–

(a) in respect of the maintenance of the spouse of the person concerned, where the spouses are living together;

(b) in respect of the maintenance of any dependent child and of any dependent relative of the person concerned, where such persons are members of his household;

at the following rates–

(i) in the case of a spouse at a rate equivalent to 25% above the amount specified for the time being in column (3) of paragraph 6 of Part IV of Schedule 4 to the Social Security Act 1975 (increase for adult dependant of Category A retirement pension)(5);

(ii) in the case of a dependent child or a dependent relative, at a rate equivalent to 25% above the amount specified for the time being in paragraph 2 of Part I of Schedule 2 to the Income Support (General) Regulations 1987(6) appropriate to the age of the child or relative.

(2) The assessment officer may reduce any rate provided by virtue of sub-paragraph (1) by taking into account the income and other resources of the dependent child or other dependant to such extent as appears to the officer to be just and equitable.

(3) In ascertaining whether a child is a dependent child or whether a person is a dependent relative for the purposes of this paragraph, regard shall be had to their income and other resources.

12.  Where the person concerned is making and, throughout such period as the assessment officer may consider to be adequate, has regularly made bona fide payments for the maintenance of–

(a) a spouse who is living apart;

(b) a former spouse;

(c) a child; or

(d) a relative;

who is not 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.

13.  Where the person concerned is required to, or may reasonably provide for any other matter, the assessment officer may make an allowance of such amount as he considers to be reasonable in the circumstances of the case.

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

(1)

1986 c. 50.

(2)

1975 c. 14; 1988 c. 7.

(3)

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

(4)

1975 c. 60.

(5)

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

(6)

S.I. 1987/1967.

(7)

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.