This section explains:
We suggest that at the earliest possible stage in a case where there will be a financial test, because legal aid was not previously in place, that you obtain the client’s financial information and signature on the declaration in anticipation of submitting the full appeal application if the case passes the sift process.
We have to decide whether a client is financially eligible where they did not have legal aid for the case at first instance. For example if:
The statutory test is whether the client’s financial circumstances are such that the expenses of the appeal cannot be met without undue hardship to them or their dependants. This test will be applied in the same way as for initial proceedings, except that we will have regard to the costs of the appeal instead of the defence.
In an application by an authorised person, their means are normally taken into account.
However, where the authorised person is the deceased’s executor, only the deceased’s estate is taken into account and the beneficiaries of that estate are treated as the dependants for the purposes of the undue hardship test.
When leave to appeal is required, the expenses to be taken into account are those of the application for leave to appeal.
If leave is obtained and legal aid is granted, we may carry out a further hardship test before the date of the appeal hearing. We will only do this if there has been a change in the client’s financial circumstances [section 25 of the Legal Aid (Scotland) Act 1986]. The legal aid certificate will include a special condition that:
The following sections deal with the information we require and the application of the financial test in the context of different financial circumstances.
Complete all parts of the online form as appropriate.
Providing all the information requested on the online application should enable us to consider the application without delay and avoid the need for us to continue the application for further information or documentation.
We do not normally require documentary evidence that your client is receiving state benefits.
However, with all clients we may take steps to verify the financial information they have given. If we find they have wilfully given us false information, or not made a full disclosure, we will consider reporting the circumstances to the procurator fiscal for prosecution.
Before we can make legal aid available, clients must provide proof of their income and outgoings.
Usually, the easiest way to do this is to provide a recent copy bank statement, marked to show income and outgoings. If their income is not paid into a bank account, we can accept a recent copy wage slip or a letter from an employer.
If the client has more than one bank account, we will require a recent copy statement for all accounts.
If a client is self-employed, we can accept:
The best way to provide proof of payment of outgoings is usually to provide a recent copy bank statement. However, if any of the outgoings do not appear on the bank statement alternative proof of payment is required.
If the applicant has more than one bank account, we will require a recent copy statement for all accounts.
A client will automatically qualify on income if they are in receipt of one of the following “passport benefits”:
We can check receipt of these benefits using our automatic DWP link. If the link is able to confirm receipt of a passport benefit, we will not require any other evidence of this.
If the passport benefit claim is in the name of the partner, our automatic DWP link can check this but we will require the partner’s:
If our link is unable to confirm receipt of a passport benefit then we will require some form of proof of payment such as a recent copy bank statement or a recent copy award letter from the DWP.
Some non-passport benefits are dis-regarded and, therefore, are not included as income in our calculations. These include:
Our automatic DWP link is not be able to check for receipt of these benefit payments, so proof of receipt of the benefit is required. This could be a recent copy bank statement or an award letter from the DWP.
We consider the following items as income:
Where the client lives with a spouse/partner, you do not need to declare partner’s income if:
We consider the following as outgoings:
For the outgoings, we will consider the full amount of the outgoings if the spouse or partner has weekly income below £222. Where the spouse or partner is in receipt of weekly income above £222, we will make an allowance for half of any declared outgoings.
Where the client lives with a spouse/partner and or any dependant person (adult other than partner) or child, a standard allowance is given for each dependant at the rates given in the current advice and assistance Keycard.
The income figure remaining, after any allowances and outgoings have been deducted is the client’s disposable income.
If the remaining figure is less than the current weekly income limit of £222, then the client qualifies on disposable income.
If the figure exceeds £222, we look at the nature of the appeal involved before we can determine whether it would cause undue hardship for your client to pay for their own legal costs.
In considering the undue hardship test, we look at factors including:
If the client has no income, you must provide an explanation about how they are financially supported. If the client has a bank account, a recent copy statement will be required in support of their financial position.
We can grant the application with a condition where we have taken all steps with the applicant and where there is no or insufficient verification.
The condition will be that the applicant provides financial verification to demonstrate their eligibility at the date of grant as soon as it becomes available to you/your client and in any event within the next three months if possible.
Failure to provide the verification could result in the end of the grant of legal aid, depending on the aid type.