Richards v The Legal Services Commission

Whether a child remains a member of a parent’s household is a question of fact and degree. The court must consider all the circumstances, including residence, relationship and continuing ties, rather than applying a simple test based on time spent at home.

Where Community Legal Service (Financial) Regulations 2000 regulation 21 applies, a reasonable deduction for maintenance is directed to money regularly paid for the maintenance of a non-household dependant. The relevant approach is receipt and control, not every expenditure that may benefit the child or provide accommodation.

The claimant sought judicial review of the Legal Services Commission’s decision that she was financially ineligible for legal aid. Maintenance payments of £1,200 per month received for two sons were treated as her gross income, resulting in refusal of funding and cancellation of an existing certificate.

She argued that her sons were no longer members of her household and that a reasonable deduction under regulation 21 of the Community Legal Service (Financial) Regulations 2000 should include expenditure benefiting them. The Commission relied on household membership and, alternatively, receipt and control.

1. Claim dismissed. The Commission was entitled to conclude that the claimant’s sons remained members of her household. The issue was one of fact and degree, having regard to all the circumstances of residence, relationship and continuing ties. No single indicator, such as the time spent at home, was conclusive.
2. The authorities concerning household membership supported that approach. A child may remain a household member despite substantial or temporary absence where sufficiently close ties with the parent and home continue. The claimant’s description of the property as the family home and a home base, together with the continuing closeness of the relationship, justified the Commission’s conclusion.
3. The household finding was sufficient to dispose of the judicial review claim. If the sons had not been household members, however, regulation 21 would not require deduction of every cost incurred for their benefit. The LSC Manual required receipt and control of the money by the child.
4. That approach was consistent with the statutory scheme, which brought income from every source into the means assessment. Money benefiting both parent and child should not be excluded. Otherwise, a non-household child could produce a larger deduction than a household child.
5. It was also arguable that regulation 21 required regular payments for maintenance by the applicant herself, whereas the claimant mainly provided accommodation and occasional assistance. The court did not need finally to determine that issue.

The claim for judicial review was dismissed. Consequential applications were to follow the directions in paragraph 22.

The judgment records that permission to bring judicial review proceedings had been granted by a single judge. The Administrative Court dismissed the claim against the Legal Services Commission.