Our case concerns an application for family reunion where our client is the sponsor in the UK and the applicant is his spouse. The applicant has no income or assets is reliant on funds sent to her by the sponsor. Money transfer receipts evidencing this support are available but these are dated before the Legal Help calculation period
Please advise when the spouse dependant deduction is applied in calculating financial eligibility for legal help.
A relevant point seems to be whether the applicant or the sponsor is the client Looking at Volume 2E (Financial Eligibility) of LSC Manual - 4.2 Aggregation of Means and dependant allowance s under 6.1
Where the applicant is the client – it seems the income of the sponsor is relevant as they are not considered 'separate and apart' as far as the LSC is concerned, so the means are aggregated.
The sponsor's total income and capital as the client's income and capital; but this is not counted twice by additionally counting the money the sponsor sends the client as the client's income (Community Legal Service (Financial) Regulations 2000 (as amended) Reg 11(1) 'Subject to paragraph (2) [which concerns contrary interest - not relevant here] in calculating the disposable capital of the client, the resources of his partner shall be treated as his resources'.)
Is it correct that the dependent deduction cannot be applied as the applicant is the dependent of the sponsor and not the other way around
Does it make any difference if the Sponsor is the client – if so, can we argue that the sponsor is the client?
Assuming that it is right to consider the applicant and sponsor as a 'couple who normally reside together' (even though they clearly are not in fact under the same roof at the moment) it does seem that their means would need to be aggregated (Funding Code Part D, para 3.1)
Once the applicant for funding is treated as having a partner, though, it would seem that the deduction has to be made, and it is not necessary to consider whether the partner is 'dependent' - notwithstanding the wording on the LH form. Regulation 20 of the CLS Financial Regs says:
"...in calculating the disposable income of the person concerned there shall be a deduction at or equivalent to the following rates (as they applied at the beginning of the period of calculation):
(a)in respect of the maintenance of his partner..."
It does not suggest that that requires any consideration of whether one partner actually 'maintains' the other (or which one does so) - once they are treated as a couple, the deduction can be made as a matter of course. Para 5.7(2) of Part D of the funding code would also seem to support that.
