Information on assessing a client’s disposable capital where financial test to be applied in a criminal appeal application

This section deals with the information we require and the application of the financial test in the context of your client’s capital position, which does not just mean cash in the bank but the full range of your client’s assets.

Complete all parts of the online form as appropriate.

Providing all the information requested on the online application should enable us to consider the application without delay and avoid the need for us to continue the application for further information or documentation.

As is the case with income, if we find the client has wilfully given us false information, or not made a full disclosure, we will consider reporting the circumstances to the procurator fiscal for prosecution.

What is capital?

In this context, capital means savings and anything else of value owned by the client:

  • All land and buildings that the client owns, other than their main home including interests in timeshares
  • Equity in a property that may or may not be rented out, that the client does not live in and is not the family home
  • Money in the bank, building society, post office, premium bonds, national savings certificates and other realisable assets
  • ISA’s, shares, bonds and other investments
  • The value of other non-essential possessions, such as a boat, a caravan, second car, jewellery (but not wedding or engagement rings), antiques or items bought for investment purposes
  • Money that is owed to the client
  • Money due from the will of someone who has died
  • Money due from a trust fund
  • Money that can be borrowed against business assets
  • Redundancy payments.

The following are not included as capital:

  • Home in which the client and their partner live
  • The client’s household furniture and clothing
  • The client’s tools and equipment they need for work
  • The value of the client’s car, unless it is of high net value
  • Any sums received as back payments of State Benefits
  • Adult disability payments and short term assistance given in accordance with the Disability Assistance for Working Age People (Scotland) Regulations 2022
  • Armed forces independence payments under the Armed Forces and Reserve Forces (Compensation Scheme) Order 2011
  • Back to work bonus (payable under the Jobseekers Act 1995)
  • Carer Support Payments
  • Child disability payments and short term assistance given in accordance with the Disability Assistance for Children and Young People (Scotland) Regulations 2021
  • Child maintenance bonus
  • Child support maintenance (paid through the Child Maintenance Service)
  • Community Care (Direct Payments) Act 1996 payments or any direct payment as defined in section 4(2) of the Social Care (Self-directed Support) (Scotland) Act 2013
  • Cost of living crisis payments via the Social Security (Additional Payments) Act 2023 and Social Fund Winter Fuel Payment (Temporary Increase) Regulations 2023
  • Employment and Support Allowance – Contributory
  • Jobseeker’s Allowance – contribution-based
  • Personal Independence Payments under Part 4 of the Welfare Reform Act 2012
  • Redress for Survivors (Historical Child Abuse in Care) (Scotland) Act 2021 payments (financial redress for historical child abuse), or any relevant payments made or due to be made prior to the date of commencement of the redress scheme
  • Scottish Child Payments
  • Scottish Infected Blood Support Scheme payments
  • Severe Disablement Allowance
  • Social Security (Additional Payments) Act 2022 (cost of living)
  • Social Security Contributions and Benefits Act 1992 (except statutory sick pay) including:
    • Adoption pay
    • Attendance allowance
    • Bereavement allowance
    • Bereavement payment
    • Christmas Bonus for pensioners
    • Council tax benefit
    • Disability living allowance
    • Guardian’s allowance
    • Housing benefit
    • Incapacity benefit
    • Industrial injuries disablement benefit including Exceptionally Severe Disablement Allowance and Constant Attendance Allowance
    • Invalid care allowance (carer’s allowance)
    • Widowed parent’s allowance
  • State Pension Credit under the State Pension Credit Act 2002
  • Universal Credit
  • Victoria Cross or George Cross payments
  • War widow’s and widower’s pension, and war disablement pension
  • Welfare Fund payments
  • Windrush Compensation Scheme payments
  • Windrush connected payments – any other payments made.
  • Winter fuel payments paid by virtue of the Social Fund Winter Fuel Payments (Temporary Increase) Regulations 2022 (cost of living)

Where a client declares capital, we will require recent proof. For instance, if the capital is in an account such as an ISA, a recent copy statement is required for that account.

Capitalised income

If capital or savings sums are used to cover weekly living expenses, we can consider these savings as weekly income instead. To do this, we need to know the length of time this capital sum is to cover. For example, if a student receives a grant or loan, or a contribution from their parents, in a lump sum at the start of the term or academic year, this sum is not included as capital but is entered as income. We convert the sum to a weekly income amount, based on the timescale. This then removes the capital from our capital assessment but includes the sum as weekly income. We require verification of the sum declared and confirmation of the period to do this.

A redundancy payment is usually included as capital. However, if an element of the redundancy payment covers any notice period, this can be declared as income, with any remaining payment covering severance declared as capital.

Dependants’ allowances

Where the client lives with a spouse or partner and/or any other dependant person or child, a standard allowance against capital is deductible for each dependant at the rates given in the current advice and assistance keycard.

If the client is of pensionable age (60 in all cases for this purpose), we may disregard some aspects of their capital depending on their disposable income.

Disposable capital

The capital figure remaining, after deducting any allowances and/or dis-regards, is the client’s disposable capital.

Any client with disposable capital below the capital limit qualifies for criminal appeal legal aid on capital. However, if the figure exceeds the current limit, we look at the nature of the appeal involved before we determine whether meeting the expenses would cause undue hardship to the client.

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