Memorandum by the Lord
2000 (S.I. 2000/516)
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