Only a solicitor can be satisfied as to eligibility, grant A&A and determine whether to provide ABWOR.
Before you can grant advice and assistance, you must be satisfied that the client is financially eligible, with or without a contribution [regulation 8 of The Advice and Assistance (Scotland) Regulations 1996]. You should, wherever possible, obtain and retain proof of income and capital (preferably a recent bank statement). The level of information and documentation will depend on your knowledge of the client.
Schedule 2 to the regulations sets out the basis on which you establish the financial eligibility of an applicant to advice and assistance (and ABWOR). It is for you to satisfy yourself that the client is financially eligible.
The disposable capital and disposable income of the client is the capital and income as determined by you, after making allowable deductions. The client may be liable to pay a contribution.
It may be helpful to set out our position on what constitutes eligibility. The matters on which you should be satisfied include a determination that:
In addition, you should consider any other specialities that relate to the provision of advice and assistance in the given context.
You must, for the purpose of ascertaining the capital and income of the person concerned and so far as necessary and practicable, obtain from that person financial or other documentation to support a grant [Schedule 2 of The Advice and Assistance (Scotland) Regulations 1996, paragraph 2A]. You should normally see proof of the applicant’s financial circumstances such as a copy of their payslip, bank statement, banking app. You must keep a copy of any financial evidence you have seen on your file.
We may not pay your account where you have not taken reasonable steps to get suitable financial verification of your client’s earnings.
If circumstances demand, you can grant advice and assistance over the telephone (correspondence, or otherwise remotely), provided you can satisfy yourself that the client is eligible. Having taken sufficient details to assess eligibility and completed form AA/LAO/CRIM, you must obtain your client’s signature to the applicant’s declaration at the earliest opportunity.
You must also ensure that you submit the online advice and assistance application within 14 days of beginning to give advice and assistance.
You cannot provide ABWOR in connection with proceedings that require our prior authority until that has been obtained.
An appreciation as to when advice and assistance starts is important. You can only start to give chargeable advice and assistance to your client at the point where you have taken your client’s instructions and are satisfied as to your client’s eligibility on the application of any means or merits tests.
Only when you do this and the client is in receipt of A&A (or ABWOR) can you incur a fee, or an outlay for example the cost of travel, where appropriate, to see your client at an initial meeting.
Where you need our prior approval
work only becomes chargeable when we have approved the application.
Where work is undertaken on the same day as the grant, we shall assume that it was done after the client was admitted to advice and assistance. This is just an assumption and if it becomes apparent that work was done or outlays incurred before the grant, it is not chargeable to the Fund.
You cannot charge for time spent obtaining information from an applicant on eligibility, assessing financial eligibility, obtaining verification on their financial circumstances or completing an advice and assistance application since this pre-dates being satisfied on the applicant’s financial eligibility.
Advice and assistance is the giving of advice to a client on the application of Scots law to their circumstances; it is not about determining whether they are eligible to receive it.
You should always assess eligibility and obtain the documentary evidence of financial eligibility as early as possible, preferably at the initial meeting unless there is real urgency and it is not practicable, and keep this on file. Any further work post-grant in obtaining verification, the purpose of which is to ensure that only those who are eligible for advice and assistance receive it and having admitted the client to advice and assistance, is not chargeable.