Consultation on Fee Remissions (waivers) for the Courts and Tribunals
- A new Government consultation proposes a stringent two-stage test for fee remissions (waivers);
- Fee remissions will be introduced to employment tribunals and the Employment Appeal Tribunal (EAT) for the first time later this year.
All fee charging courts and tribunals operate a system of remissions to ensure that individual applicants who are unable to afford fees are not denied access to their services. The Ministry of Justice (MOJ) has recently published a consultation on a wide-ranging reform of the fee remission (waivers) system for the courts and tribunals.
As fees are being introduced to the employment tribunals and the EAT for the first time in autumn of this year, the subject of fee remissions may be a new concept to many employment law practitioners and HR professionals.
The consultation proposes a new two-stage test based on the disposable capital and monthly income of the claimant both of which the applicant will have to pass both tests to be eligible for a fee remission. Depending on their financial circumstances, a person may have their entire fee or part of their fee remitted (where they will only have to pay a contribution towards their fee):
It is proposed that the new system that would apply across all fee charging business areas with the exception of the First-tier Tribunal (Immigration and Asylum Chamber).
- The first test (the disposable capital test) will determine whether an applicant is eligible for a remission based on an assessment of their householddisposable capital. ‘Household’ is defined as a household unit as a single person or a couple; and,
- The second test (the monthly income test) will consider whether an applicant who passed the disposable capital test receives a full fee waiver, pays a contribution towards their fee or pays the full fee.
A full fee waiver will be granted if the applicant can demonstrate that their household income is below a certain threshold (set out below). Above the threshold the applicant would be required to pay a contribution towards the fee, up to the value of the fee, based on a percentage of their income in excess of the threshold, or the full fee where their income exceeds the threshold by a defined amount.
1. The disposable capital test
The proposal is that:
- For fees up to £1,000, remissions would be limited to applicants whose household’s disposable capital does not exceed £3,000.
- For fees between £1,001 and £4,000, remissions would be limited to those applicants whose household’s disposable capital does not exceed £8,000.
- Where a fee may exceed £4000, they propose to increase the capital limit to £16,000.
Treatment of disposable capital
The key types of disposable capital to be considered are extensive and include:
- All capital held in all types of savings accounts, ISAs, fixed rate bonds, market linked investment bonds or savings, trust funds, or any other fund available to the applicant;
- Stocks or shares;
- Any type of capital financial product;
- Redundancy capital payments received;
- Second homes;
- Any jointly held capital; and
- Any type of capital held outside the UK.
The following outlines the key types of disposable capital which would not be considered:
- The value of property and land occupied by the party as their first home;
- Unfair dismissal capital payments received;
- Compensation received for a personal injury or medical negligence;
- Capital held in personal pension schemes, occupational pension schemes or insurance products; and
- Any payments to be considered as income.
2. The monthly income test
Under the full remission element, gross monthly income thresholds are proposed for single people and couples, with a further allowance added for each dependent child.
Proposed income thresholds:
Gross Monthly Income with Single Couple
No Children £1,085 £1,245
1 Child £1,330 £1,490
2 children £1,575 £1,735
The Government intends to accept that recipients of Income-related Employment and Support Allowance, Income Support, Income-based Jobseeker’s Allowance and Pension Credit guarantee credit would be automatically deemed to fall below this income threshold and will therefore receive a full remission, if they also pass the household disposable capital test.
The consultation includes a link to an online excel calculator which demonstrates how the test would work – https://consult.justice.gov.uk/digital-communications/fee-remissions-court-tribunals/consult_view
The following is a summary of the evidence which the Government intends to accept to apply for a full or partial remission based on income:
- Documentary evidence of a qualifying benefit as issued by DWP dated within the last month, or the current financial year for Pension Credit guarantee credit.
- Three month’s bank statements in addition the evidence detailed below:
i) Paid employment: applicants must provide their most recent original wage slips from all their jobs;
ii) Self-employment: applicants must provide their most recent tax return (Self–Assessment), and either their most recent HMRC Self-Assessment Tax Calculation or other proof of current income;
iii) Other source of income: applicants must provide alternative documentation if the other sources of income have not been listed within their bank statements.
Retrospective fee remissions
To reduce the administrative burden on court/tribunal staff it is proposed to reduce the period in which applicants can apply for a retrospective remission from 6 months to 2 months.
Draft forms have yet to be published. The consultation estimates that the transition costs for HMCTS including issuing forms and guidance and minor staff training is expected to be a mere £3,000.
The Government will publish a response to the consultation in the summer.
This article was first published in the New Law Journal on 31 May 2013, and is reproduced by kind permission. http://www.newlawjournal.co.uk/nlj/biographies/philip-henson
Partner and Head of Employment Law, DKLM LLP
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