Means assessment
17. Before we decide if we should do a detailed investigation of a complaint, we look at whether there are signs the organisation has got something wrong. We do this by comparing what should have happened with what did happen. We have done this and have not seen any signs that something has gone wrong.
18. Mr A complains LAA altered his financial evidence. He told us that after the means assessment in April 2022, some transactions that were on his statement were not included in his outgoings. He asked LAA to send him the evidence it had received from his solicitor. When he received it a page of each of his statements was missing, and these contained most of the transactions on his account. However, some of the transactions such as his rent were on the missing pages and had still been included in the means assessment. Mr A also complains LAA delayed reviewing the assessment.
19. In its complaint response on 1 July, LAA says:
‘When your original application was received and assessed on 12April 2022, credits as shown on your bank statement were included as income along with your waged income. Deductions were allowed for tax, National Insurance and rent. Following further information you supplied on 8 June 2022, your means assessment was reviewed and your means was reassessed solely on your waged income. This was reassessed on 20 June 2022 in line with our 10 working day turnaround time for dealing with correspondence. Deductions were allowed for rent of your declared home address, council tax, tax and National Insurance and your contributions were reduced to 6 payments of £907.00.
There has been no attempt to falsify your means assessment but as Caseworkers are duty bound to protect the public purse, assessments are made based upon the information provided and will include all potential sources of income.
I further draw your attention to the advice given by my colleague on 20 June 2022 with regards to submitting a Hardship application (CRM16) via your solicitor. If you have additional priority debts such as credit cards, loans, purchases under credit or finance agreement, rent for a property other than your declared home address etc. These may also be considered as a deduction from your income if sufficient evidence is received with a completed CRM16 application. For more information on hardship reviews please see the ‘Criminal Legal Aid Manual’.’
20. The LAA’s ‘Criminal Legal Aid Manual’ details its ‘General principles of assessment’. It says:
‘There are two levels of means test:
• The initial means test: the applicant’s gross household income is weighted to take account of family circumstances – the result is their adjusted income • The full means test: the applicant’s gross household income, allowable outgoings and a weighted living allowance are combined – the result is their disposable income
The means test is used to determine whether
• the client is funded in the magistrates court (including Committals for Sentence) • the client is funded in Crown Court trials and, if so, whether they have to make an income contribution • the client will have to make an income contribution if their appeal is unsuccessful or abandoned…
The applicant’s gross income minus the allowable outgoing and the weighted annual living allowance produces their disposable income.
Allowable outgoings
o tax and National Insurance o annual housing costs (excludes any Housing Benefit or Council Tax Benefit) o annual childcare costs o annual maintenance to former partners and any children’.
21. The ‘Criminal Legal Aid Manual’ explains what a hardship review is:
‘Applicants can apply to the LAA to have their financial eligibility reviewed on the grounds of hardship where they are not granted legal aid because they:
• fail the means test in the magistrates’ court or • are assessed as ineligible in the Crown Court or • are subject to an income contribution order because they have disposable income above the threshold (in the Crown Court) …
An applicant may submit a hardship review using the CRM16 at any point, including the point of application, up until the conclusion of proceedings. The applicant can use the further information section to state the reason they are requesting the review and in Crown Court hardship reviews this is likely to be where the applicant believes the stated level of monthly contribution is too high or unaffordable.’
22. The guidance goes on to explain examples of expenditure that can be considered, including loans, credit/store card payment and debts.
23. We can see from the means assessment completed on 12 April 2022 that LAA accepted his wage slip from 25 March 2022 for his employment income. We can also see from this assessment that it allowed deductions of £550 per month for rent. Following further information being provided by Mr A, when the means assessment was completed again on 20 June, it has allowed deductions relating to his council tax. From the evidence we have seen, the deductions the LAA have included are those that are allowable as outlined in the ‘Criminal Legal Aid Manual’.
24. We can see that on 5 May LAA received further evidence from Mr A but it did not complete a revised assessment until 20 June. LAA has explained that when it receives new evidence its timeframe for dealing with this is ten working days and it told us the assessment completed on 20 June should have been done sooner.
25. We asked Mr A which transactions he believes the LAA has altered. He has not answered this specific question. We have taken a view based on what LAA are able to allow as deductions.
26. Apart from his rent and council tax payments, we can see from his statements that Mr A also has outgoing payments to credit cards, a debt management plan and finance for equipment for his job. The ‘Criminal Legal Aid Manual’ says that payments such as these cannot be included in the means assessments, only in a hardship review. Mr A completed a CRM16 application on 20 June 2022. LAA received this on 1 July and completed its first hardship review on 5 July where it said that Mr A must still make a contribution to his legal fees. The LAA completed further hardship reviews on 12 and 29 July where Mr A’s contribution was reduced to nil and this was dated back to when he first applied for legal aid.
27. We appreciate that when the LAA first completed a means assessment and informed Mr A that he must contribute £1289 a month to his legal fees this caused him to feel stressed and anxious. We also understand that this would cause him financial hardship if he were to contribute this amount.
28. We cannot say that the LAA has altered his evidence. When it completed the first means assessment it included all the allowable outgoings it was able to for this assessment and requested further information from Mr A. We also cannot say that LAA has incorrectly completed the means assessments as it can only consider the information provided. As Mr A provided more evidence, it reassessed the information each time and his contributions were reduced.
29. We consider that this is in line with our ‘Principles of Good Administration’ that say, ‘All public bodies must comply with the law and have regard for the rights of those concerned. They should act according to their statutory powers and duties and any other rules governing the service they provide. They should follow their own policy and procedural guidance, whether published or internal’.
30. There was a delay in LAA completing a revised means assessment between 5 May and 20 June. We understand that this was frustrating for Mr A. We cannot say this caused an overall delay in his contributions being reduced to nil. This is because at the time of this revised means assessment he was still assessed as having to make a contribution. This would not change until he submitted a hardship review and provided evidence to allow LAA to include all his relevant outgoings which reduced his contribution to nil. This did not happen until 29 July.
Holding fee and enforcement action
31. Mr A complains that he was threatened with legal action as he did not pay the contributions he was ordered to. He says this was because LAA did not communicate properly with the enforcement agency. He says he had to pay a holding fee of £255 to stop legal action while his hardship review was being considered.
32. While we cannot look at the actions of the enforcement agency we can consider LAA’s communication with it.
33. We cannot see that Mr A has specifically raised these issues with LAA through his complaint. But we asked LAA to explain the holding fee. It told us that this is the minimum payment that a person can pay to stop any legal action while a hardship review is taking place. It told us that this payment would count towards the contribution and is not an extra payment. It said that if the person is assessed as not legally responsible for making any contribution, it is refunded.
34. LAA has given us its communications with the enforcement agency. We can see after its means assessment on 20 June it told the enforcement agency about it. After it received Mr A’s hardship application on 1 July, it requested a 30 day hold from legal action. When it completed the hardship assessments on 5 and 12 July, it again updated the enforcement agency. On the final hardship assessment on 29 July where Mr A’s contributions were reduced to nil, we can see that this information was given to the enforcement agency.
35. We can see that Mr A paid the holding fee on 31 May. He also made a further payment of £183 on 1 August. Both of these payments were refunded to Mr A on 4 August.
36. We are satisfied that LAA updated the enforcement agency after each reassessment it had completed. Mr A paid the holding fee to stop any legal action taking place, but we cannot say this was because LAA did not communicate with the enforcement agency.
37. We understand this was a stressful time for Mr A. We cannot say LAA has done anything wrong as it can only assess the information it is provided with and this information was passed on to the enforcement agency.
38. We are sorry to hear of the difficulties Mr A had while his legal aid contributions were assessed. We hope that he is reassured by our consideration of his concerns.