The Advice and Assistance (Scotland) Amendment Regulations 2010 made changes to the assessment of your client’s financial eligibility for advice and assistance 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 client, are to be treated as part of the child’s own resources unless it would be unjust or inequitable to do so.
A “child” means a person [Section 1 (5) Children (Scotland) Act 1995]:
For this provision the obligation of aliment applies to:
It is for you to decide whose resources, in addition to those of the child itself, must be included in the assessment of financial eligibility. You must decide if it would be unjust or inequitable in the particular circumstances of the case to treat the resource of any persons(s) with an obligation for aliment as the child’s. Details must be given as to why this conclusion had been reached.
The following are examples of situations where we could consider the aggregation of a POA’s resources to be unjust or inequitable:
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.
Whilst the guardian may be the legal owner of an account, any capital in the account belongs to the child. If money held is for another child other than your client, it should be disregarded.
There may be a risk of capital being transferred from an account or investment of your client into an account of their child, purely for financial assessment purposes. 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, it is likely to constitute deprivation of resources.
You may have to make further enquiries about the information submitted by the POA.
Advice and Assistance application procedures
This page includes information on how to apply for non-templated increases in expenditure under civil A&A. It covers the information you should provide us with; case-related factors to address in your application; the process for reconsideration of refused increases; the process for urgently needed increases; whether authority for retrospective increases is available; and other guidance you may wish to consider.