Joint Committee on Statutory Instruments Fifteenth Report


Memorandum by the Lord Chancellor's Department


  1. The Lord Chancellor's Department submits this memorandum in response to the request dated 15 March 2000 on the following points:

Explain what provision in the Act authorises regulation 11(1) which provides that, in calculating the disposable income and disposable capital of the client, the resources of his partner are to be treated as his own.

  2. Section 7(1) of the Act provides that services may be funded for an individual as part of the Community Legal Service if his financial resources are such that, under regulations, he is an individual for whom they may be funded. The section leaves to regulations the determination of the eligibility of the individual and the question of what are his financial resources. "[H]is financial resources" is intended to be read to mean resources available to the individual rather than solely income and capital owned by him. This construction, and the way in which the Regulations are framed, are in keeping with the general aim of the Community Legal Service to provide services within available resources, and priorities set, under Part I of the Act (section 4(1)), and to obtain the best possible value for money (section 5(7)). The concept in the Act of limited funds to be used to the best possible effect is mirrored by the provisions in the Regulations that if an individual has available to him other potential sources of funding, they are to be taken into account in the determination of his eligibility. This approach is also reflected in regulations 11(3) and (4), which provide for resources to which the individual may have recourse to be treated as his resources, and in regulation 12 regarding deprivation.

  3. There is no provision in the Act which specifically authorises aggregation of resources, but regulation 11(1) falls within the enabling powers for the reasons given above.

Regulation 13 requires the client to inform the assessing authority of any change in his financial circumstances (or those of any other person concerned) which has occurred since any assessment of his resources, and which might affect the terms on which the client was assessed as eligible to receive funded services. Explain whether this provision is intended to impose a duty on the client to inform the authority of any change in the financial circumstances of any other person concerned (for example, his partner or parent) even if he is unaware of the change. If this is not the intention, explain why it is not expressly provided that this duty arises where the change in the financial circumstances of any other person concerned is known to the client.

  4. This provision is subject to an implied qualification limiting it to changes of which the client is, or should reasonably be, aware. In any event, it is highly likely that, unless there is a contrary interest, (which situation is provided for in regulation 11(2)), the client would be aware of any changes in the financial circumstances of the relevant other person.

  5. However, the Department accepts that this point might be clarified and undertakes to amend the regulation accordingly when amending regulations are made.

Regulation 44(1) provides that the charge created by section 10(7) of the Act is not to apply to [(f)] any payment of money made in accordance with an order of the Employment Appeal Tribunal (excluding an order for costs). Explain why there is no corresponding exemption for money ordered to be paid by an employment tribunal.

  6. There is no exemption provided in respect of such payments, as a matter of policy, because funding is not (and never has been) available for representation in employment tribunals, but it is potentially available for representation in the Employment Appeal Tribunal.

17th March 2000

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