How the hardship application is processed

This section aims to give you an overview of the principles behind how an application is assessed on a hardship review in the magistrates’ court

Computation Period

The calculation period is based on the twelve-month period immediately prior to the time of the application but the assessment must reflect the applicant’s current and expected usual income. If the applicant is employed at the point of application, then it will be assumed that this employment would continue. If the applicant has been unemployed for some time over the last twelve months it would clearly not be appropriate to take this into consideration as this would not reflect the applicant’s current financial situation.

The majority of assessments will be based on the applicant’s circumstances at the time of the application. If employed the most recent wage slip will be used. Any other forms of income will be considered carefully in order to assess whether these reflect usual income or are merely one-off payments.

For applicants whose employment circumstances vary, for example, due to seasonal reasons please refer to section 12.9 Erratic income/seasonal workers.

Only items of expenditure that have occurred within the twelve-month period before the application for legal aid will be considered. Where loans or credit agreements have been taken out prior to the application for legal aid, the LAA can take into consideration any future payments remaining.

Where a commitment has been taken on at the point of applying for legal aid or later the applicant would have to demonstrate that it relates to essential expenditure for it to be considered.

If the applicant has shown that they have been denied access to a source of income, the LAA may only allow the amount which has been denied to the applicant during the twelve-month computation period.

Evidence

The applicant will be required to provide sufficient evidence to support the claims made in the CRM 16 i.e. if the applicant claims they have to make debt repayments they must provide credible and

independently verifiable documentary evidence in the form of the loan agreement and bank statements to support the claim and to prove the payments are being made.

How the result is determined

Please see the tables below showing how the result is calculated. Example figures have been used to illustrate the process.

Magistrates’ court Hardship Review

Disposable income

(from full means assessment)

£8,742

Less extra expenditure (Allowable expenditure £2000)

= £6,742

Less denied access to income figure (No denied income)

= £6,742

>£3,398? Yes

If the adjusted disposable income is above £3,398, solicitors’ costs are then considered: Less estimated solicitors’ costs Estimated costs £3,742

= £3,000

<£3,398? Yes, PASS

If the adjusted disposable income is below £3,398 or below, the applicant will pass. If the figure is above £3,398, the applicant will fail the hardship review.

Crown Court Eligibility Review

Disposable income

(from full means assessment)

£50,000

Less extra expenditure (Allowable expenditure £1000)

= £49,000

Less denied access to income figure (No denied income)

= £49,000

=/>£37,500? Yes

Less estimated solicitors’ and advocate’s costs

Estimated costs £15,000 = £34,000

<£37,500? Yes, Eligible

Disposable income for purpose of income contribution

(Disposable income from full means test) – (extra expenditure) – (denied access to income) =

£49,000

Monthly income contribution £49,000 12 x 0.9 = £3,674 (£18,370 up front) (subject to offence type cap)

Crown Court Hardship Review

Disposable income

(from full means assessment)

£6,742

(current contributions £505.65 monthly, £6,067.80 upfront)

Less extra expenditure (Allowable expenditure £2,742)

= £4,000

Less denied access to income figure (No denied income) = £4,000

>£3398? Yes

If the result is that the adjusted disposable income is £3398 or less, the applicant will no longer be expected to make contributions from their income. If the figure is above £3398, they will be expected to make some contribution towards their case costs from their income.

In the example above this would result in a revised monthly contribution of £300 or £1,500 up front.

When will a Hardship application be accepted - magistrates’ court

An application for Hardship (on a CRM 16) must be submitted whilst the case is ongoing. If the

application is rejected, due to being incomplete, or further information required, then the application will be re-considered, even if the case has concluded.

If the hardship application is successful, then the applicant will be entitled to legal aid backdated to the submission of your initial legal aid application.

When will a Hardship application be accepted - Crown Court

The application must be completed with accompanying evidence and submitted whilst the case is ongoing. Ordinarily we would expect a hardship application to be submitted promptly once the case has been sent to Crown Court unless exceptional circumstances apply.

contribution order amount will be altered from the point the case progresses to the Crown Court, or the submission of your initial legal aid application, whichever is the latest.

What happens with the assessed monthly contributions if applicant has submitted or is submitting a Hardship application?

The applicant should be advised that if they make the minimum payment of £255 (which is the minimum contribution for someone failing the full means test), Rossendales will not treat this as a broken

arrangement. If the contribution amount following hardship is above £255 then the arrears will need to be made good. If the applicant passes on hardship then any payments will be refunded.

When will a Crown Court Eligibility Review be accepted?

Following the refusal of legal aid for a Crown Court trial the applicant has 21 calendar days to apply for an Eligibility Review. Evidence of any additional expenditure also has to be provided within the 21 days to be considered.

After 21 days the applicant will need to make a New Application Following Ineligibility.

NCT has the discretion to conduct an Eligibility Review assessment after the 21 day period in exceptional circumstances. If an extension of time is sought please contact NCT.

If an item of additional expenditure is missed off the CRM16 then a new CRM16 together with the evidence will be required for NCT to consider the additional item.

Multiple Eligibility Reviews will be accepted within the 21 calendar days but once the 21 days have passed a New Application Following Ineligibility will be required (new CRM14 & CRM15) and any Representation Order will only be dated from the date that the new application is received.

Note: if evidence is missing this can be submitted after the CRM16 but again this has to be submitted within the initial 21 days for the additional expenditure to which it relates to be considered. Once this time has passed a New Application Following Ineligibility will be required (new CRM14 and CRM15). When submitting a new application you may submit a resigned and re-dated copy of the CRM16 and endorse it to show that the information is still relevant.