The Criminal Defence Service (Financial Eligibility) Regulations 2006

EXPLANATORY NOTE

(This note is not part of the Regulations)

These Regulations set out the criteria relating to financial eligibility which must be satisfied before individuals involved in criminal proceedings in a magistrates’ court may receive publicly funded representation. They take effect from 2nd October 2006, when the relevant amendments to the Access to Justice Act 1999 effected by the Criminal Defence Service Act 2006 come into force.

Individuals in receipt of certain benefits such as income support are automatically eligible, as are those under 16 or under 18 and in full-time education (regulation 5). If the individual has a partner, the partner’s resources are to be treated as those of the individual, unless the partner has a contrary interest in the proceedings (regulation 7). The individual may be required to provide evidence in support of his application; if he fails to do so, the representation authority (the Legal Services Commission or its delegate) must normally withdraw a representation order if it has granted one (regulations 6 and 15).

An individual is financially eligible for a representation order if his gross income, adjusted to take account of any partner or children living with him, is £11,590 or less, and ineligible if it is £20,740 or more (regulation 9). Where it falls between these amounts, the representation authority is to calculate the individual’s annual disposable income, making deductions in respect of any income tax, national insurance, council tax, housing expenses, child care costs, maintenance and living expenses. The individual is eligible if his annual disposable income does not exceed £3,156 (regulation 10).

Where there is a change in an individual’s financial circumstances which might affect his eligibility for a representation order, he must notify the representation authority of the change if he has been granted a representation order, and he may make a renewed application if his previous application had been refused because he was financially ineligible (regulations 11 and 13).

An individual may apply to the representation authority for the review of a decision that he is financially ineligible, on the grounds that his income has been miscalculated. He may also apply to the Commission, notwithstanding that he is financially ineligible under the Regulations, on the grounds that he can nevertheless not afford to pay for legal assistance (for example, because the costs of the case are likely to be particularly high). The Commission may refer a question arising on a review to the High Court for its decision (regulation 14).

A regulatory impact assessment has been prepared for instruments relating to the Criminal Defence Service Act, which is available from Criminal Legal Aid Strategy Division, Department for Constitutional Affairs, 54 Victoria Street, London SW1E 6QW and can also be found at http://www.dca.gov.uk/risk/crime-defence-act-ria.pdf.