Assessment of undue hardship in solemn proceedings

We must be satisfied after consideration of your client’s financial circumstances that the expenses of the case cannot be met without undue hardship to your client or their dependants [Section 23A of the Legal Aid (Scotland) Act 1986].

In assessing this, we require full information about:

  • The client’s own financial situation
  • Any spouse or partner’s financial situation who is living with the client and receiving an income

Unlike advice and assistance, we do not combine the client and their spouse or partner’s finances in our financial assessment.  We use this information to allow us to consider any sharing of outgoings.

The income of any spouse or partner does not need to be declared if:

  • It is not material or substantial
  • Where the spouse or partner has a contrary interest in the case.

Therefore, if the spouse or partner’s take-home income is less than the current upper income limit, or the spouse or partner is the complainer, a Crown witness or co-accused in the case, their income does not need to be declared.

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