Paragraph 1 of schedule 2 to the regulations states that the applicant’s income is taken to be the income they may reasonably expect to receive (in cash or in kind) during the period of computation. The following notes give examples of the most common types of income and how we treat them.
Income calculation: assessment of wages or salary from employment
The applicant should supply
a statement of their earnings completed by their employer and/or
usually a minimum of three wage slips.
We will look at what they have earned since the start of the current tax year and use this information to calculate an average that we assume they will earn for the whole of the coming year. While we can get some insight into earning capacity from someone’s P60 (issued annually by employers, usually in April or May, to show the employee’s earnings during the preceding fiscal year) we prefer the more up-to-date information contained in the pay slips or statement.
We can also take account of, for example, seasonal fluctuations, or periods when the applicant is not paid, such as school holidays.
Income calculation: calculation of net profit from self-employment or business
We take into account information contained in the latest set of accounts about the net profit your client has earned. We make certain adjustments to the net profit as follows:
We add back notional overheads such as depreciation and provision for bad debts.
We make a full allowance for any loans or hire-purchase commitments for business purposes. Most accounts only show interest paid on hire purchase, not the principal repayment. That is why we frequently ask for loan agreements and hire purchase contracts from self-employed applicants. It will speed up processing the application if this information is presented with the accounts.
If your client is newly self-employed and does not have a full year record, we can accept the figure the applicant says they draw each week or month from the business. We will ask for bank statements, to help determine these figures in the absence of accounts.
If your client does not have to have accounts made up, we will accept a copy of the information made available to HM Revenue & Customs and the tax assessment based on it.
Income from state benefits: list of those disregarded and those included in assessment
Paragraph 5 of schedule 2 authorises us to disregard payments of income support, income-related employment and support allowance, income-based jobseeker’s allowance and Universal Credit and paragraph 7 allows us to disregard payments of disability living allowance, attendance allowance or Personal Independence Payment , and these will be left out of account. All other state benefits will be converted to an annual figure and included. Pension credits are also not taken into account.
Other sources of income included in financial assessment
Pension – We will include all pension payments due, both state and work related.
Housekeeping – We will include payments made by partners for housekeeping only if
the applicant and partner are living under the same roof, but regard themselves as separated or
there is a contrary interest between them in the case.
Otherwise we will aggregate the partner’s resources with the applicant’s and ignore the sums they exchange as housekeeping payments.
Maintenance – This includes all alimentary and similar payments the applicant receives including those made through the Child Support Agency.
We only take into account payments received, as opposed to payments which have been ordered or agreed but are not being met.
Where the applicant is defending a downward variation of aliment, or is currently receiving payments as a result of an interim award of the court, which is being defended, we consider the payments form part of the subject matter of the dispute. We therefore disregard either the whole payment or that part which is at issue.
Voluntary maintenance is taken fully into account.
Child Support Agency (CSA) – The annual figure for payments made to the applicant through the CSA is included.
Student grants – We include any grant the applicant will receive but not any student loan they could get.
Voluntary aliment payments in divorcecases – Where legal aid is sought for divorce, and an estranged partner is already paying aliment to the applicant voluntarily, we take this sum into account in assessing financial eligibility, since it does not depend on the result of the proceedings. We do not accept the view that in this situation the aliment paid forms part of the subject matter of dispute.
List of deductions/allowances made in the calculation of income
Rent or mortgage – We make an allowance for the annual rent paid by the applicant, net of any housing benefit they are entitled to. If the applicant owns the house, we allow the annual mortgage paid, including the premium payable for any related life assurance policies.
Council tax – We allow the annual figure for council tax payable, subject to any reductions or council tax benefit applicable.
Allowances for partners – If the applicant is living with a partner, whether they are legally married or not, and that partner’s resources have been included in the assessment, a statutory allowance is made to cover their dependency on the applicant. This figure is set by the Scottish Parliament and is up-rated annually. This is usually the only allowance we can make, unless the partner has special needs necessitating extra expenditure from their joint income.
Maintenance payments for partner living apart – An allowance can be made for sums being paid to a separated partner, whether the applicant was legally married to that partner or not. We will only make this allowance for amounts actually changing hands, and not if, for example, for sums the applicant has been ordered to pay but is not currently meeting.
We can also make an allowance for any sums paid through the Child Support Agency.
Maintenance payments for former partner – We can make an allowance for any sums being paid to a former partner, whether voluntarily or in terms of a court order. However, we can only make this allowance for amounts actually changing hands, and not for amounts the applicant has been ordered to pay but which they are not currently paying.
An allowance can be made for any sums being paid through the Child Support Agency.
Dependency allowance for maintenance of members of the applicant’s household – A statutory allowance can be made for children resident with the applicant. These can be their own children, their partner’s children or any children resident with them on a full-time basis, who are wholly dependent on the applicant or their partner. The allowance is statutory and is up-rated annually. It is shown on the current Keycard (sent out to solicitors annually, and on our website). If the applicant has part-time care of a child, we apply a pro rata reduction to the statutory allowance.
Actual maintenance – >We make an allowance for maintenance payments to a separated spouse, partner or children, whether under a court order or voluntarily, and for payment of a maintenance assessment by the CSA.
This is not a definitive list of all deductions, but illustrative only.
In this section
Financial eligibility for civil legal aid: general conditions and limits
Satisfy yourself that the client is financially eligible for civil legal aid with reference to income and capital.
Choosing the right financial information form for the client
Use the appropriate civil application financial form depending on clients circumstances
Civil legal aid assessment period and its consequences: ‘period of computation’
View information about the period of computation and your client's obligation to tell us about any change in circumstances that may affect their eligibility.
Taking partners’ financial resources into account: civil legal aid
Learn about how partner is defined, contrary interest and parties living apart when considering financial resources for civil legal aid.
Civil legal aid: assessment of capital resources and relevant disregards/allowances
Find out which of your client's capital resources must be taken into account when applying for legal aid.
Financial assessment where applicant has deprived themselves of resources: no disregards given
Under regulation 12, we must consider capital disposed of before an application was made.
Calculating disposable capital and disregards: are the resources the subject matter of dispute?
Assessing the clients disposable capital and guidance on the relationship between subject matter of dispute and clawback
Financial assessment for special categories of applicant
The financial resources of any person who owes a POA to a child applicant are to be treated as part of the child’s own resources unless unjust to do so.
Appellate proceedings: is a fresh financial assessment and additional contribution necessary?
We may reassess disposable income and disposable capital if there has been a change in circumstances that would normally result in a reassessment.
Adults With Incapacity (Scotland) Act 2000: modified financial assessment process
Guidance on modified financial assessment process in Adults with Incapacity cases
Will my client be liable to pay a contribution?
Information on how instalment rates of maximum contribution are set and the relationship with case cost.