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.
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.
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.
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:-
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.
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.
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:-
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.
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:
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.