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.

Solemn Criminal

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

Case category High Court (£) Sheriff Court (£)
Assault Assault 4,511 1,210
Police and Fire Reform (Scotland) Act 2012 802 1,185
Bail (including breach of bail) Breach of bail conditions – 27(1)(a) 243
Breach of bail conditions – 27(1)(b) 1,495 698
Breach of bail conditions – other 935
Drugs related matter Misuse of Drugs Act 5,995 1,355
Embezzlement/fraud Embezzlement 1,970
Fraud 5,926 1,498
Social Security Administration Act 1,681
Murder/Culpable homicide Murder 12,224
Attempted murder Attempted murder (multiple) 5,369 8,435
Attempted Murder 7,041 2,038
Offensive behaviour Breach of Peace 1,130
Culpable and reckless conduct 962
Domestic Abuse (Scotland) Act 2011 2,005
Domestic Abuse (Scotland) Act 2018 1,577 1,187
Firearms Act 6,312 1,719
Offensive Weapon 1,021 1,241
Sections 28 to 50 of the Criminal Justice & Licensing (Scotland) Act 2010 4,769 972
Other Abduction 3,524 1,163
Animals (dangerous dogs etc) 1,579
Attempting to pervert the course of justice 7,879 1,153
Breach of ASBO 1,092
Children and Young Persons (Scotland) Act 1937 1,544
Civic Government (Scotland) Act 1982 – other 1,104
Communications Acts 478
Criminal Law (Consolidation) (Scotland) Act 3,119 1,127
Offenses under explosive substances act 1883 6889
Other Criminal 2,126 1,092
Section 327 to 333 and 339 (1A) of proceeds of crime act 2002 (Money laundering) 22,706 4,582
Terrorism 10,693 2,499
Wasting police time 445
Wilful fire raising 3,188 1,415
Road traffic Road Traffic Act 10.248 991
Road Traffic Act Death by Driving 8,460 2,370
Robbery Assault & Robbery 5,983 1,324
Assault & Robbery – commercial premises 5,357 1,953
Robbery 1,338
Sexual offences Breach of Sexual Harm Prevention Order 1,000
Civic Government (Scotland) Act 1982 – indecent photographs: possession, making, distribution 3,189 1,409
Lewd and libidinous behaviour against children under 12 5,907 948
Rape 2,960 2,614
Section 1,2,3(2)(a) and 18 to 27 of 2009 Sexual offences Act 6,249 1,916
Sexual Offences – Other 2,676 1,289
Theft/housebreaking Civic Government (Scotland) Act 1982 (Section 57 – theft with intent etc.) 425
Housebreaking 1,347
Reset 1,373
Theft 193 1,251
Theft of Motor Vehicles 1,233

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.

    High Court (£) Sheriff Court (£)
Assault Assault 9,433 2,499
Police and Fire Reform (Scotland) Act 2012   2,191
Bail (including breach of bail) Breach of bail conditions – 27(1)(a)   916
Breach of bail conditions – 27(1)(b) 890 606
Drugs related matter Misuse of Drugs Act 10,131 2,532
Embezzlement/fraud Embezzlement 7,713 6,171
Fraud   3,527
Murder/Culpable homicide      
Culpable homicide 20,376  
Murder 30,616  
Attempted murder Attempted murder (multiple) 18,465 2,683
Attempted Murder 11,819 4,988
Offensive behaviour Breach of Peace   2,246
Culpable and reckless conduct   1,572
Domestic Abuse (Scotland) Act 2011   2,598
Domestic Abuse (Scotland) Act 2018 17,270 2,762
Emergency Workers Act   876
Firearms Act 14,411 2,446
Offensive Weapon   2,192
Sections 28 to 50 of the Criminal Justice & Licensing (Scotland) Act 2010 20,859 2,247
Vandalism   10,091
Other

Abduction 21,104 3,144
Animals (dangerous dogs etc)   2,174
Attempting to pervert the course of justice 19,076 2,880
Children and Young Persons (Scotland) Act 1937   6,648
Communications Acts   1,991
Criminal Law (Consolidation) (Scotland) Act 12,708 2,234
Offence under section 1 or 4 of the Human Trafficking and Exploitation (Scotland) Act 2015 23,934  
Offenses under explosive substances act 1883   5,757
Other Criminal 24,491 2,486
Section 327 to 333 and 339 (1A) of proceeds of crime act 2002 (Money laundering) 33,909 5,569
Wilful fire raising 12,320 2,975
Road traffic Road Traffic Act 14,280 3,229
Road Traffic Act Death by Driving 20,108 8,597
Robbery Assault & Robbery 15,489 2,537
Assault & Robbery – commercial premises 11,503 2,582
Robbery   2,554
Sexual offences Breach of Sexual Harm Prevention Order   2,574
Civic Government (Scotland) Act 1982 – indecent photographs: possession, making, distribution 4,915 2,414
Lewd and libidinous behaviour against children under 12 19,364 9,431
Rape 15,630 11,351
Section 1,2,3(2)(a) and 18 to 27 of 2009 Sexual offences Act 18,202 7,182
Sexual Offences – Other 15,376 4,164
Sodomy 26,480  
Theft/housebreaking Housebreaking 4,419 2,170
Reset 4,329 1,586
Theft 3,400 3,132
Theft of Motor Vehicles   2,845

 

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.