This section explains the different types of income, outgoings, how to calculate disposable income and documentation required.

Clients in receipt of a “passport benefit”

Your client will automatically qualify on income if they are in receipt of one of the following passport benefits:

  • Income Support
  • Income related Employment and Support Allowance
  • Income based Job Seekers Allowance
  • Universal Credit

We can check receipt of these benefits using the automatic DWP link. If the link is able to confirm receipt of a passport benefit, we will not require any other documentation in relation to the benefit claim.

Benefit claim in the name of client’s partner

If the passport benefit claim is in the name of the partner, the automatic DWP link can check this but we will require the partner’s:

  • Forename
  • Surname
  • Date of birth
  • NI number

If the link is unable to confirm the partner’s passport benefit claim we will require other proof of payment such as a recent copy bank statement or a recent copy award letter from the DWP.

Clients in receipt of a “non-passport benefit”

Some non-passport benefits are dis-regarded and are therefore not included as income in our calculations. These include:

  • Disability living allowance
  • Personal independence payments
  • Attendance allowance
  • Carers allowance
  • Incapacity allowance
  • Pension credit

The 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.

Client’s other income

We consider the following items as income:

  • Pay or sick pay from work (including overtime, commission, bonuses, but after deducting income tax, national insurance, etc)
  • Drawings/net profit if self-employed
  • Private pension
  • Any other state benefits
  • Student grant or bursary
  • Maintenance payments received
  • Money from all other sources

Where your client lives with a spouse/partner, you do not need to declare their income if the spouse or partner has a contrary interest in the case.

A contrary interest in the proceedings is if the spouse/partner is:

  • The complainer
  • A co-accused
  • A crown witness

You also do not need to declare the spouse/partner’s income if their net pay is less than the current upper income limit of £11,540 per annum or £222 per week.

Client’s outgoings

We consider the following as outgoings:

  • Rent or board and lodgings
  • Mortgage (including any endowment or life insurance policies linked to the mortgage)
  • Council tax/water charges
  • Regular loan re-payments
  • Minimum monthly credit card/store card payments
  • Maintenance payments
  • Court fines
  • Car insurance and car tax payments
  • Other reasonable 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.

Disregarding benefits from income threshold

Some clients receive a combination of state benefits and these can exceed the weekly disposable income threshold. If your client’s personal circumstances mean that they incur additional household expenses for themselves, you should tell us about these as we may take these into account.

Where your client receives a non-passported benefit as a result of the disability of a family member, this is disregarded from our assessment.

Dependants’ allowances

Where your client lives with a spouse/partner 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.

Disposable income

Your client’s disposable income is the figure remaining, after any allowances and outgoings have been deducted.

Remaining figure less than £222

If the remaining figure is less than the current weekly income limit £222, then your client qualifies on disposable income.

Remaining figure more than £222

If the figure exceeds £222, then the amount over £222 is multiplied by 26, and compared to the median cost of the case.

The median case costs we use depends on:

  • Whether the case is to proceed 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 your client 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

If any of these factors are present, your client may still be eligible for legal aid.

Median case costs table – Non Trial

 

Case category

 

High Court Non Trial

 

Sheriff and Jury Non Trial

Assault £3,429 £1,021
Drugs £4,578 £1,149
Embezzlement/fraud £2,890 £1,241
Murder/attempted murder/culpable homicide £5,111 £1,515
Offensive weapons/breach of the peace £3,652 £896
Other £3,342 £343
Road traffic offences £8,451 £709
Sexual offences £7,965 £1,177
Theft/housebreaking/robbery £4,207 £1,096

 

Median case costs table – Trial

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

 

Case category

 

High Court Trial

 

Sheriff and Jury Trial

Assault £7,910 £2,980
Drugs £10,601 £3,289
Embezzlement/fraud £11,019 £2,749
Murder/attempted murder/culpable homicide £14,579 £3,801
Offensive weapons/breach of the peace £14,128 £2,349
Other £15,470 £3,113
Road traffic offences £11,814 £3,720
Sexual offences £13,356 £5,129
Theft/housebreaking/robbery £9,562 £2,267

 

 

Clients in receipt of no income

If your client has no income you must provide an explanation as to how they are currently financially supported. If your client has a bank account, a recent copy statement will be required to support of their financial declaration.

Documentation required

Before we can make legal aid available, your client must provide proof of their income and outgoings. The easiest way to do this is to provide a recent copy bank statement, marked to show where the income and outgoings are. 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 a client is self-employed, we can accept:

  • The most recent self-assessment tax return
  • A recent copy bank statement if this shows their weekly drawings
  • A letter from their accountant confirming their weekly drawings

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 your client has more than one bank account, we will require a recent copy statement for all accounts.

Covid-19

For the period of the Covid-19 restrictions, where applicants may have difficulties in getting wage slips or bank statements from their bank, they can download their bank statements or screenshots and send them to us by email. We can also accept mini statements from the cash machine.

We are aware that not everyone has access to online banking and that banks are only dealing with priority matters by phone, and therefore it may not be possible for applicants to contact their banks for copies of statements. We will discuss with applicants what may be possible, including the options set out above. If there is no way of providing any verification, we’ll take the following approach:

If the applicant has provided verification in another application in the last six months, we can check this and use this as verification. The applicant will need to declare that there has been no change in their circumstances.

Granting legal aid with conditions

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.

How payments to self-employed people during Covid-19 affects eligibility for legal aid

 The Scottish & UK Governments have offered financial support to self-employed people whose business is affected by Covid-19. This update describes how these will be treated for the purposes of assessing eligibility for legal aid.

Scottish Government Business Support Scheme 

This is a one-off grant of either £10,000 or £25,000 (linked to the non-domestic rates system) paid through local authorities.

To assess eligibility for legal assistance, this payment will be disregarded in all aid types.

UK Government Self-employment Income Support Scheme (SEISS)

This is the support put in place for the self-employed as they are ineligible for the Coronavirus Job Retention Scheme. Applicants will get a taxable grant which will be 80% of the average profits from the last three years, up to a maximum of £2,500 per month for 3 months. It will be paid directly into an individual’s bank account, in one instalment, expected to be by June. A second grant can be claimed in August 2020. For the purpose of assessment of eligibility for Universal Credit, SEISS is treated as a receipt for the purposes of calculating the claimant’s self-employed earnings.

How to treat the SEISS payment in financial eligibility assessments

  •  To assess eligibility for legal assistance, these payments will not be treated as capital for any aid type.
  • The payments will be treated as income. It will be included in the calculation of net profit and the applicant’s drawings. It is the drawings figure which will be used to assess a self-employed applicant’s disposable income.
  • For all aid types, the income should be apportioned over the three month period the SEISS grant is intended to cover.
  • As with all income, proof of payment should be provided.

For Solemn Criminal legal aid, where we apply the Undue Hardship test, we will treat the payments as income to allow us to calculate the applicant’s weekly self-employed earnings. In the application, you should enter the amount received, divided by 12, as weekly drawings.

In this section

Financial eligibility for solemn criminal legal aid

Undue hardship test in solemn criminal legal aid applications

Learn about the undue hardship test in solemn criminal applications and the information we need to assess it.

Financial eligibility for solemn criminal legal aid

Assessing disposable capital

Find out what we consider when assessing disposable capital and what we include and exclude in our calculations.

Financial eligibility for solemn criminal legal aid

Changes in financial circumstances

Find out the standard conditions attached to grants of legal aid and our power to terminate if your client's finances change.