The Gazette 1989

GAZETTE

APRIL 1989

party to proceedings . . . ", that it must be . . . "reasonable having regard to all the circumstances of the case . . ." to provide legal services and so on. The relevance of the "merits" test will be apparent to practit- ioners; there is very little point in referring an indigent client to the Legal Aid service where the practitioner concerned already considers that, from a legal point of view, the client's case is totally lacking in merit, and that legal services (no matter who provides them) are unlikely to provide him with any worthwhile benefit. If the practitioner considers, however, that the matter is "borderline", or perhaps that a process of negoti- ation might produce some worthwhile benefit, it would be a different matter. (B) Means Test - An applicant is eligible on financial grounds if his "disposable income" and diapos- able capital" are within certain limits specified in the Scheme. (As mentioned earlier, the treatment of capital resources is dealt with separately in this article - in the vast majority of cases applicants do not have significant capital resources which means that, by and large, eligibility is determined by reference to income alone). "Disposable income" is the income which remains when various deductions are made from gross income - "gross income" being defined as total income received from all sources. The deductions to be made from gross income - referred to as "allowances" - include, for example, income tax, mortgage repayments, rent, social insurance, V.H.I, contributions, expenses in travelling to and from work together with various allowances in respect of the applicant's spouse and dependent children. A person will qualify for services under the Scheme if his annual disposable income does not exceed £5,500 per annum. Obviously, with the various allowances that can be made, an individual with the usual family commitments could qualify for legal services on a gross annual income considerably in excess of £5,500. The Board's Annual Report for 1985 contained various examples, one of which showed that a married man with three children and fairly typical commit-

ments would still qualify for legal aid on a gross income of almost £14,000 per annum. There would be no advantage in going into further details, here, on the subject of disposable income. Guidance will be provided in individual cases at any of the Board's Law Centres - phone numbers and addresses are given below. There is, however, one further point worth mentioning on means assessement and that is that while the income of husband and wife are normally aggregated, they are treated separately when the parties are in conflict with each other or where they are living separately and apart. The effect of this rule is that in a very high proportion of matrimonial cases a wife will qualify for legal services even if her husband is financially secure. (C) Capital Rasources - As mentioned above, an applicant's capital resources are treated separately from his income. "Capital" includes, for example, money in a bank or post office account, house property or land. The assessment of the value of such resources can be a rather complex matter. The aim is to find the value of the applicant's disposable capital which is its gross value less, for example, the cost of realising assets, outstanding loans, etc. Again, there would be no real advantage in discussing the details of capital assessments here; the Board's staff will be able to help in individual cases. As in the case of income assessments, however, certain features are worthy of special note:- (i) the value of the applicant's family home is excluded, except where its unencum- bered value exceeds £45,000, and (i i) farm land is treated much more favourably than other types of capital for assess- ment purposes. (D) Contributions - All appli- cants for legal services are liable to pay certain contributions. The minimum contribution is £1 for legal advice plus a further £14 where the applicant needs to take or defend court proceedings; minimum contributions are payable

by people whose disposable income does not exceed £3,500 per annum. Where the applicant's disposable income is between £3,500 and £5,500 per annum (the latter being the upper eligibility limit), higher contributions become payable both for legal advice and for legal representation. The maximum income-related contribution (i.e. leaving aside the question of capital resources) for legal advice is £50 and for legal representation in Court £515. An analysis of contributions for legal representa- tion, which is contained in the Board's Annual Report, 1986 shows that less than 6% of all applicants were liable for a contribution in excess of £15 and only ten applicants (under 1% of the total) were liable for a contribution in excess of £100. No applicant, is of course, required to pay a contribution in excess of the cost to the Board of providing him with legal services. An important feature of the contributions system is that, generally speaking, the individual applicant knows, from the outset, what the maximum cost of legal services will be, even if he loses the action. In some cases (in practice, a very small minority of cases) the contributions originally determined may be increased - for example, where the applicant's financial circumstances improve while he is in receipt of legal services, or (more commonly) where his financial circumstances change for the better as a result of obtaining such services. Additional contributions may be payable also in the case of a person with assessible capital resources. This does not arise in the vast majority of cases; if there are queries in individual cases, the Board's staff will be in a position to assist. There are three final points concerning contributions which are worthy of special mention; (i) All persons depending solely on Social Welfare payments qualify for legal services on payment of the standard "minimum" contributions referred to earlier i.e. £1 for advice plus a further £14 for representation in court. (i i) A person who is liable to pay the minimum contributions

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