Cases where documentary evidence not available immediately

We recognise that there will be occasions when clients do not have verification of their financial circumstances, but you need to start or continue acting for your client.

There may also be difficulties in obtaining documentary evidence from clients with literacy, mental health issues or chaotic lifestyles.

You should still continue to seek the appropriate documentary evidence and explain why it is not reasonably possible to obtain documentary evidence of financial eligibility.

Where they do not have access to documentary evidence, you may be satisfied from the limited information available that they are eligible and give them advice. However, this should be on agreement that they will provide the evidence at the earliest opportunity. You should obtain the verification before seeking an increase in authorised expenditure.

If the client doesn’t provide evidence, you must show in your application that reasonable attempts have been made to contact them.

If you acted diligently and in good faith and it later transpires that your client is ineligible, we will honour the increases that we granted and assess and pay your account accordingly, but would seek repayment from your client.

Where attempts have been made to obtain verification

If you have been unable to see verification but have taken every possible step to obtain this, make sure you let us know about this. You should also record details of this in your file. You should let us know what steps have been taken, such as the number of letters and/or phone calls at the question ‘If you have not been able to obtain financial verification for income, please explain how you were satisfied that you could grant advice and assistance and what reasonable steps you took or are taking to obtain this information’.

The following are examples of the steps you can take;

• Asking the applicant in person at court or in a meeting
• Requesting evidence by telephone
• Sending an email
• Sending a text message
• Sending a letter.

At least two attempts to obtain proof are normally considered reasonable. For example, a verbal request followed by a request by email or two letters to the applicant would be sufficient. If a request has been made, the applicant should be allowed at least 14 days to respond before a second request is intimated.

Verification update

Where you are updating us on the verification you have now seen or advising what steps you have taken to obtain verification then you submit a verification update. Please do not send this information via an online message.

If your client tells you they have no income or capital, you should ask them why this is the case. If they are not in custody or on remand, then why do they not have any income? For example, have they applied for benefits, and these have not been awarded yet? You need to be satisfied that there is a credible reason for having no income. In the online application, you must tell us:

• why they have no income,
• how they were supported in the last seven days,
• if they are supported by parents, family and/or friends.

If the applicant has a bank account, you should obtain a bank statement from the client to confirm the position. Again, if this is not provided by the client, make sure you tell us about the steps you have taken to obtain this.

Most of the population have bank accounts now, especially if they are earning wages or receiving benefits. If your client tells you that they don’t have a bank account, you should explore this further with them and ask them how they receive any wages or benefits payments they may receive. You need to be satisfied that there is a credible reason for not having a bank account and you should note this on the application.

Verification if there is no capital

If the client has no capital or savings, please do not say something like “cannot prove a nil”. Most applicants will have at least one bank account, especially if they own or rent their home, have any regular outgoings which are paid by standing order or direct debit or receive a salary or state benefits.

The balance(s) held in these accounts should be recorded in the application as capital savings. Where the account is a current account or the only account held by the applicant, any excess balance held in the account once all monthly standing orders and direct debits have deducted should be recorded. You can then select “Bank Statement” from the capital verification options as evidence seen.

If your client has no bank account

Similarly, if your client tells you that they don’t have a bank account, you should ask them how they receive any wages or benefits payments they may receive. If you are happy with the explanation you receive, you should record this as a note in your file. You should select ‘Other’ from the capital verification options and then provide information about how you satisfied yourself that your client does not have a bank account or any capital.

Relying on the Signed Declaration as Verification that an Applicant has No Capital

If your client tells you that they have no capital or savings and subsequently signs the declaration, you can use the signed declaration to verify that the applicant has no capital.

However, you can only state that you are relying on the signed declaration if your client has, in fact, signed the declaration. If verification of capital is not available at the initial meeting, you should try to get this later. You can then update us on what evidence you have seen, or in cases where you have been unable to obtain verification, the steps you have taken to obtain this by submitting a verification update.

Where your client has no capital, and you do not have a signed declaration, how you complete the online application will depend on whether she/he has a bank account. Where there is a bank account, you should normally see a bank statement for the qualifying period to verify the capital position. However, the following guidance should help you answer the online questions and submit the application where you have not seen verification, and you do not have a signed declaration.

No capital, and no signed declaration, applicant has a bank account

I have seen the most recent evidence of the applicant’s capital – No

Awaiting Verification? Yes – submit the application and advise us later when verification is seen.

Awaiting Verification? No – add free text to explain why applicant cannot provide any verification. For example, if the client is in custody or in hospital, or you can explain the steps you have taken to get verification.

No Capital, and no signed declaration, applicant has no bank account

I have seen the most recent evidence of the applicant’s capital – No

Awaiting Verification? No – add free text to explain that the applicant has no bank account.

If your client is in police custody, advice and assistance is automatically available and not subject to a financial eligibility test [section 8A of the Legal Aid (Scotland) Act 1986].

Additionally, there is no liability for your client in police custody to pay a contribution [section 11 of the 1986 Act].

In situations where it is appropriate to act for clients without seeing verification, your client must be advised of the need to provide verification as soon as possible.  The client must sign a mandate before being admitted to advice and assistance or ABWOR and be advised that you may make enquiries to any relevant third party to obtain evidence of income.

This mandate (distinct from the client’s declaration which allows us to access such information) should be in the following terms:

I agree to my solicitor contacting other people or bodies about my financial circumstances to verify my eligibility for legal assistance.  If I do not provide evidence of my income or capital when requested by my solicitor after being admitted to legal assistance, or if my solicitor requires further verification, I understand that my solicitor will contact my employer, my bank, the DWP, HMRC or any other relevant 3^rd party as appropriate, to obtain evidence of income and or capital, as appropriate.  I authorise these other people or bodies to provide the information that my solicitor needs to verify my eligibility for legal assistance.

Signed………………………………………………………………………………

Date……………………………