Assessing disposable capital

The initial threshold for disposable capital in solemn cases matches the current advice and assistance limit. Please see the Keycard for the current limit.

In this context, capital means savings and anything else of value owned by the client:

• All land and buildings that the client owns, other than their main home
• Interests in timeshares
• Equity in a property that may or may not be rented out, that the client does not live in and is not the family home
• Money in the bank, building society, post office, premium bonds, national savings certificates etc
• ISA’s, investments, shares, bonds, etc
• The value of other non-essential possessions, such as a boat, a caravan, second car, jewellery (but not wedding or engagement rings), antiques or items bought for investment purposes
• Money that is owed to your client
• Money due from the will of someone who has died
• Money due from a trust fund
• Money that can be borrowed against business assets
• Redundancy payments.

The following are not included as capital:

• Home in which your client and their partner lives
• Client’s household furniture and clothing
• Client’s tools and equipment they need for work
• Value of the client’s car, unless it is of high net value
• Any sums received as back payments of State Benefits
• Adult disability payments and short term assistance given in accordance with the Disability Assistance for Working Age People (Scotland) Regulations 2022
• Armed forces independence payments under the Armed Forces and Reserve Forces (Compensation Scheme) Order 2011
• Back to work bonus (payable under the Jobseekers Act 1995)
• Carer Support Payments
• Child disability payments and short term assistance given in accordance with the Disability Assistance for Children and Young People (Scotland) Regulations 2021
• Child maintenance bonus
• Child support maintenance (paid through the Child Maintenance Service)
• Community Care (Direct Payments) Act 1996 payments or any direct payment as defined in section 4(2) of the Social Care (Self-directed Support) (Scotland) Act 2013
• Cost of living crisis payments via the Social Security (Additional Payments) Act 2023 and Social Fund Winter Fuel Payment (Temporary Increase) Regulations 2023
• Employment and Support Allowance – Contributory
• Jobseeker’s Allowance – contribution-based
• Personal Independence Payments under Part 4 of the Welfare Reform Act 2012
• Redress for Survivors (Historical Child Abuse in Care) (Scotland) Act 2021 payments (financial redress for historical child abuse), or any relevant payments made or due to be made prior to the date of commencement of the redress scheme
• Scottish Child Payments
• Scottish Infected Blood Support Scheme payments
• Severe Disablement Allowance
• Social Security (Additional Payments) Act 2022 (cost of living)
• Social Security Contributions and Benefits Act 1992 (except statutory sick pay) including:
  • Adoption pay
  • Attendance allowance
  • Bereavement allowance
  • Bereavement payment
  • Christmas Bonus for pensioners
  • Council tax benefit
  • Disability living allowance
  • Guardian’s allowance
  • Housing benefit
  • Incapacity benefit
  • Industrial injuries disablement benefit including Exceptionally Severe Disablement Allowance and Constant Attendance Allowance
  • Invalid care allowance (carer’s allowance)
  • Widowed parent’s allowance
• State Pension Credit under the State Pension Credit Act 2002
• Universal Credit
• Victoria Cross or George Cross payments
• War widow’s and widower’s pension, and war disablement pension
• Welfare Fund payments
• Windrush Compensation Scheme payments
• Windrush connected payments – any other payments made.
• Winter fuel payments paid by virtue of the Social Fund Winter Fuel Payments (Temporary Increase) Regulations 2022 (cost of living)

Where your client declares capital, we will require recent proof. For instance if the capital is in an account such as an ISA, a recent copy statement is required for that account.

If capital or savings sums are used to cover weekly living expenses, we can consider these savings as weekly income instead. To do this we need to know the length of time this capital sum is to cover. We convert the sum to a weekly income amount, based on the timescale the capital is supposed to cover. This then removes the capital from our capital assessment but includes the sum as weekly income. We require verification of the sum declared and confirmation of the period to be able to do this.

Any redundancy payments are usually included as capital.  However, if an element of the redundancy payment covers any notice period, this should be declared as income.

Where your client lives with a spouse/partner and or any dependant person or child, a standard allowance against capital is deductible for each dependant at the rates given in the current Keycard.

If your client is of pensionable age, we may disregard some aspects of their capital depending on their disposable income. The current Keycard provides details of the dis-regards.

The capital figure remaining, after deducting any allowances and/or dis-regards, is your client’s disposable capital.

Client’s disposable capital below the limit

Any client with disposable capital below the capital limit qualifies for criminal solemn legal aid on capital.

Client’s disposable capital above the limit

However, if the figure exceeds the current limit of £1,716, we will compare the excess amount over, to the median costs of the case. If the excess amount over the £1,716 limit is less than the median case costs the client qualifies on disposable capital. If this figure is above the median case costs, the client will not qualify on capital.

The median case costs we use depends on whether:

• The case is due to be heard in the High Court or the Sheriff court
• The case category
• Whether the case is going to trial or not

For instance, if the case can only proceed in the High court such as a charge of Murder, Culpable Homicide or Rape, we will use the High court non-trial median case cost unless or until we are advised the case is going to trial. We also look at the nature of the case involved before we can determine whether it would cause undue hardship to pay for their own legal costs.

In considering the undue hardship test, we look at factors such as:

• The number of witnesses involved
• The likelihood that expert evidence would be required
• Legal complexities involved
• Any other aspects of the case likely to lead to a need for significant preparation time

Solemn Criminal

Average (Median) case costs table – Non Trial 30 March to 31 December 2023 

Average (Median) case costs table – Trial 30 March to 31 December 2023 

If we are advised that a case will be going to trial, then the following higher median costs can be used for the calculation.