Legal Aid Policy : Five-Yearly Review of the Criteria for Assessing Financial Eligibility and Rate of Interest that Accrues on Director of Legal Aid's First Charge

Five-Yearly Review of the Criteria for Assessing Financial Eligibility and Rate of Interest that Accrues on Director of Legal Aid's First Charge

As one of the recommendations arising from the 1992 legal aid policy review, the Administration undertakes to review once every five years whether any changes should be made to the way in which the Legal Aid Department assesses the financial eligibility of legal aid applicants. In May 2003 the Administration invited Council to comment on its proposed improvement measures arising from the second five-yearly review on the criteria for assessing financial eligibility. The Council conducted an indepth study of the Administration's recommendations in the light of changing social and economic conditions and put forward its views to the Director of Administration in December 2003.

In September 2004, the Administration responded to Council's comments. Both the Administration's and Council's comments were set out in the last report. In December 2005, the Administration updated Council of the latest development of the review.

The Five-Yearly Review

The implementation of a number of the Administration's proposals requires legislative amendments, viz
(a) to expand the deductible for the care of dependant infant;
(b) to include maintenance payment as a deductible item;
(c) to allow an amount of insurance monies to be disregarded under specified circumstances;
(d) to reduce the contribution rate of the Supplementary Legal Aid Scheme from 12% to 10%; and
(e) to revise the interest rate accrued on the Director's first charge.

The Administration has also taken on board Council's comments, in relaxing further the deductible item of the provision for care of dependants. In addition to the Administration's suggestion to extend the deductible to include the amount incurred by the legal aid applicant to provide for the care of the applicant's other dependants, on condition that they are living with him and are unable to take care of themselves for specified reasons and require care by the applicant, Council has recommended that the condition for the dependant to live with the applicant should be relaxed. Acknowledging Council's view, the Administration agreed to remove the condition that the dependant has to live with the applicant and also to remove the requirement that the applicant has to be absent from home to qualify for the allowance.

Accordingly, the Legal Aid (Assessment of Resources and Contributions) (Amendment) Regulation 2005 were tabled in the Legislative Council in December 2005 to come into effect in February 2006.

The following improvement measures under the five-yearly review did not require legislative amendments and were already put into practice through administrative measures -

(a)	the loss or reduction of future income should be taken into account in calculating an applicant's disposable income, subject to proof to the satisfaction of the Director of Legal Aid (DLA); and
(b)	it should be made known to the legal aid applicant the practice of allowing payment of interim contribution of $38,950 under the Supplementary Legal Aid Scheme (SLAS) by a maximum of 6 monthly instalments in appropriate circumstances and on a case-by-case basis. The relevant information has already been included in the leaflet on the SLAS distributed to the general public.

Currently, the DLA is entitled to a first charge on any property recovered or preserved for the aided person in the proceedings, in respect of any outstanding contribution, as well as that part of the net liability the DLA incurred on behalf of the aided person in excess of the total contribution. If the DLA agrees to defer enforcing the first charge, a simple interest payable by the aided person shall accrue at a fixed rate of 10% per annum.

In response to comments from the Panel on Administration of Justice and Legal Services of the LegCo, the Administration considered it more appropriate to adopt instead an interest rate that had due regard to market movements.

The Administration tabled the Legal Aid (Charge on Property) (Rate of Interest) Regulation in the Legislative Council in December 2005 to come into effect in June 2006.