Assessing disposable income in solemn proceedings

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:

  • 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
    • 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)

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.

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.

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.