Financial assessment for special categories of applicant

Financial assessment of children

The Civil Legal Aid (Scotland) Amendment Regulations 2010 introduced changes to the assessment of an applicant’s financial eligibility for civil legal aid if they fall within the definition of a child. The financial resources of any person who owes an obligation of aliment (POA) to a child applicant are to be treated as part of the child’s own resources unless it would be unjust or inequitable to do so.

The regulation applies to applications made by solicitors appointed by the court to act in a representative capacity for a child in addition to those made by solicitors instructed directly by a child.

Definition of a child for purposes of financial assessment

In Regulation 11A of the Civil Legal Aid (Scotland) Regulations 2002, “child” now has the meaning given in section 1 (5) of the Family Law (Scotland) Act 1985, which states:

child” means a person –

(a) under the age of 18 years; or

(b) over that age and under the age of 25 years who is reasonably and appropriately undergoing instruction at an educational establishment, or training for employment or for a trade, profession or vocation.

Obligation of aliment: exceptions to aggregation of resources

For this provision the obligation of aliment applies to those parties defined in section 1 (1) (c) or (d) of the Family Law (Scotland) Act 1985, which are:

(c) a father or mother to his or her child;

(d) a person to a child (other than a child who has been boarded out with him by a local or other public authority or a voluntary organisation) who has been accepted by him as a child of his family.

We will consider each case on its own merits but there are no instances where we can automatically accept that the resources of a POA should not be aggregated. If a solicitor is of the view that it would be unjust or inequitable for aggregation of resources to take place a detailed explanation must be given by the solicitor as to why it is considered this is the case.

It is not sufficient to simply state that in the circumstances of a particular case it would be unjust or inequitable to aggregate the POA’s resources without explaining what the circumstances are that led to that conclusion.

We have set out below some general principles and guidelines to assist solicitors in establishing in what circumstances it could be considered that aggregation of the POA’s resources would be unjust and inequitable. This guidance is illustrative only and is not an exhaustive list of scenarios that may arise.

  • If the applicant is or has been a looked after child and is living independently from the POAs (whether currently in a looked after setting or not) it is likely that it would be unjust and inequitable to take the POAs’ resources into account. You should tell us about the particular circumstances of the child so that we can consider there and decide whether it would be unjust and inequitable.
  • If the application is for the appointment of a Guardian under the Adults with Incapacity (Scotland) Act to a child over the age of 16, they are still treated as a child for the purposes of the legal aid regulations. However, if the applicant is the POA for the child, aggregation of resources will, in most circumstances, be accepted as unjust and inequitable. You should provide sufficient information about the circumstances in the application to inform the exercise of the discretion in favour of the applicant. For example you could provide us with information about expenditure the POA incurs in caring for the child which may not be covered by standard allowances for dependents, particularly when the child has special needs.
  • If a POA has a contrary interest in the outcome of the case then that person’s resources should be discounted. The information provided must demonstrate that the child and the POA are seeking a different outcome to the proceedings for which legal aid is sought.
  • If the child is estranged from the POA, has either never had contact with the estranged parent, has had little or no contact for a reasonably long period of time, and/or is unaware of the POA’s current address we will not expect the resources of the POA to be treated as the child’s. However, if the POA is alimenting the child although not exercising contact we would expect to be addressed on why the POA is not prepared to allow his/her resources to be aggregated so as to assist the child with the cost of proceedings.
  • If the applicant is aged 18 to 24 and falls within the criteria described in section 1(5)(b) of the Family Law (Scotland) Act 1985 but has left the home of the POA(s) to set up on his/her own , we will not expect the resources of the POA(s) to be treated as the child’s. In the circumstances that the applicant has returned to live with a POA due to financial difficulties or the breakdown of a relationship consideration can be given to assessing eligibility based on the applicant’s resources only. However, where there is no evidence that this has been the case the and the  applicant has always been resident with a POA then the resources of the POA will require to be aggregated unless there are other factors which  would make it unjust and inequitable.
  • If an applicant who otherwise fits the definition of a child is or has been married we would not expect the resources of the POA(s) to be aggregated.
  • If the POA has a partner or spouse their resources would fall to be aggregated with the POA and those of the child applicant. This is on the grounds that regulations also state the resources of any spouse or partner are to be treated as being the resources of the person whose resources fall to be taken into account in the assessment unless the parties have a contrary interest in the case or are living separate and apart. (See Regulation 11 of the Civil Legal Aid (Scotland) Regulations 2002.)
  • The assessment of financial resources which is undertaken of the resources of POA’s is no different from that undertaken in any other application for civil legal aid. Where the POA has to provide for a  particular expense, whether that be in relation to, for example, the needs of an disabled child, whether that child is the applicant or another member of the POA’s household, then an allowance can be made when we are determining the disposable income and capital of that person. Care should always be taken to ensure that the fullest possible information is given to us about the monetary cost of maintaining a child with special needs. The need to meet the special requirements of a disabled child does not, in itself, amount to grounds that it would be unjust or inequitable for the resources of a POA to be aggregated but it may be that, in the particular circumstances of an individual case there are other issues which could have a bearing, but detailed representation on the matter would have to be made.
  • If the child, for good and cogent reasons, does not wish his/her seeking separate legal representation to be disclosed to either POA some evidential support for this position must be provided together with clear detailed reasons for the stance being adopted by the child.
  • If the applicant ceases to be a child, in terms of the definition, within the first three months of the computation period, we would not expect the resources of the POA(s) to be treated as the child’s
  • If there is a history or threat of domestic violence between the POA and the parent caring for the child and the parent with care suspects that any approach for financial information in connection with the child’s application might give rise to new or further problems being experienced then this should be reported to us. Evidential support for this view would be required, for example details of previous convictions for crimes of violence or a civil interdict having been granted. The Board will then consider if the resources of that POA are to be aggregated or not and may carry out any correspondence with the POA needed to assess the case if necessary.

When the Board is assessing a child applicant’s financial eligibility for civil legal aid we have to obtain information about the resources of POA’s and the information supplied forms part of the application. This leads to two consequences:-

  • The first is that we may have to make further enquiries about the information submitted by the POA. Our first approach would be to the person owing the alimentary obligation, but if we do not receive a response we may have to contact either the child applicant or the solicitor.
  • When we have completed our assessment in a civil legal aid case we issue to the applicant a breakdown showing the capital, income and expenditure that we have taken into account in assessing the applicant’s financial eligibility. In an application by a child this will include any such capital, income and outgoings of the POA.

Dealing with sensitivity around disclosure of aggregated resources

  • We understand that some of those owing an alimentary obligation may have degrees of sensitivity about information regarding their resources being available to the child as a result of these processes. It is important, therefore, that you inform them of this at the outset when you or the child asks them to provide the information to support the application. It will then be for them to decide whether to supply the information to allow the assessment to be undertaken but they should be aware that if they do not provide the information the child’s application may have to be refused.

It has been put to us that in some instances the parents owing an obligation of aliment to the child applicant may be involved in litigation themselves concerning matters such as residence or contact which would make the parent with care very reluctant to contact the other POA for financial information. This, in itself, is not generally regarded as showing that it would be unjust or inequitable to aggregate the POA’s resources but in this situation the Board can conduct the correspondence needed with the POA to obtain the information.

Bank accounts held by parents for other children: disregards and potential deprivation of resources

Accounts may be opened in the name of the guardian for the child’s benefit, or if opened in the name of the child (typically from the time they reach the age of 7) the guardian may be authorised to operate the account on behalf of the account holder child. In these circumstances, the guardian holds the monies in the account on trust for the child, as the beneficial owner of the capital. In the terms and conditions we have reviewed this is expressly stated therein. Accordingly, whilst the guardian may be the legal owner of an account for the purposes of administering it on behalf of someone who has not yet reached capacity, any capital in the account does not belong to them and is the capital of the child. Therefore, when the money is held for a child other than that for whom the current application for legal assistance is being made it should general be disregarded from any assessment for legal assistance purposed.

That is not to say the Board would have no interest in the existence of such accounts. There may be a risk of capital being transferred from an account or investment of an applicant into an account of their child, purely for financial assessment purposes. Therefore Regulation 12 of the 2002 Regulations which deals with deprivation of resources by someone in order to make themselves financially eligible may be engaged. Our view is that it would be unreasonable for the Board to deem that any and all monies transferred to a child’s account amounts to deprivation, and each case would have to be looked at on its own set of facts.  Where large tranches of money are moved into the child’s account just prior to an application for legal aid, then this would be more likely to constitute deprivation of resources. Alternatively, had a parent set up a standing order for a regular payment of money to their child over a number of years then this would be unlikely to constitute deprivation of resources, although it would be open to the Board to consider any continuation of such payment from the time of submitting an application to be deprivation.

Financial assessment of resources held by prisoners

In assessing financial eligibility in cases where the applicant is in prison the resources of the applicant’s spouse or partner have to be taken into account when assessing financial eligibility in accordance with Regulation 11.

Regulation 11 allows that there are two circumstances where aggregation need not apply, namely:-

  • Where the spouse or partner is the opponent in the case for which legal aid is sought

or

  • Where the parties are living separate and apart

In considering the second bullet point we do not consider that a geographical separation is sufficient reason to leave the spouse or partner’s resources out of account, and would only do so if the applicant considers that the marriage or relationship must be at an end.

In addition we will take into account every resource of a capital nature owned by an applicant who is in prison.

This includes any property in which the applicant has a financial interest, even if that  property was the applicant’s main or only residence before his/her imprisonment, provided  we are  satisfied that the applicant will not reside in the property in question for at least the likely lifetime of the case

Consideration can be given to disregarding the value of the applicant’s share of the equity in such a property if the criteria usually applied to the disregard of capital assets is appropriate, for example, if the property is occupied by the applicant’s spouse or partner or the applicant’s share of any equity is at issue in the proceedings for which legal aid is sought.

Persons applying in representative or fiduciary capacity: what resources are taken into account?

Where a person is applying in a representative, fiduciary or official capacity, or is a named person by virtue of any of sections 250 to 254 and 257 of the Mental Health (Care and Treatment) (Scotland) Act 2003, we disregard the applicant’s personal resources, but take into account:

  • the value of any property or any fund out of which the applicant is entitled to be indemnified, and
  • the disposable income and capital of anyone who might benefit from the outcome of the proceedings.

For example, if someone applies in the capacity of an executor, we have to consider not only the value of the estate, but also the resources of any beneficiaries of the estate (which might include the applicant).

Where the applicant is concerned in certain proceedings (defined in regulation 14(4)) relating to an incapable adult, we disregard the applicant’s personal resources, but have regard to the personal resources of the incapable adult.

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