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. 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.
For the period of the Covid-19 restrictions, solicitors must still be satisfied that the client is financially eligible, and you should record in a file note that you have discussed the eligibility tests for A&A with your clients and how you satisfied yourself that the clients are eligible. Relying on the information provided verbally by the client is acceptable.
When completing online applications, in the sections where you are asked if you have seen “the most recent evidence of the applicant’s capital and income”, you should:
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 3rd 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.
Advice and assistance application procedures
Learn how to an increase in authorised expenditure for ABWOR cases for post-conviction breaches & reviews, multiple deferred sentences and template increases.