Questions to ask your client in determining whether to grant advice and assistance

Questions to ask child applicants

  • How old is the child?

If the child is under 12 and applying themselves, non-qualified staff should refer to you to decide if the child can give instructions.

Has your client deprived themselves of resources?

  • Has your client disposed of any resources, or converted any part of those resources into a different form of resource?

Non-qualified staff should refer to you for a decision on whether these resources should be taken into account.

Questions to ask married or cohabiting clients

  • Is your client married, in a civil partnership or cohabiting?

This is classed as two persons living together as husband and wife or in a relationship that has the characteristics of the relationship between husband and wife [section 42 of the Legal Aid (Scotland) Act 1986]. This covers spouses and civil partners and those living together in relationships with the characteristics of spouses or civil partners.

The resources of the couple must be aggregated unless:

  • There is a contrary interest between the parties in the case for which legal aid is sought
  • Your client and their spouse or partner are living separate and apart
  • There is something about the case that would make it unfair or impractical to treat the partner’s resources as part of your client’s

In order for the resources of a partner to be disregarded on the grounds that the partner holds a contrary interest in the case it must be shown that the partner is seeking a different outcome from the applicant. This is not the same as where a partner may have a different interest in the proceedings, for example, where the partner may be called upon to give evidence which is detrimental to themselves or to the applicant’s case but nonetheless he/she seeks the same outcome as the applicant.

In considering if aggregation should not occur because the couple are not living together, it must be shown that the relationship is at an end.

Some periods of physical separation take place without ending a relationship. For example:

  • Due to the requirements of your client or partner’s military service or job
  • Arrangements arrived at to facilitate residence or contact with children
  • The need to maintain separate households as a result of accommodation difficulties
  • Your client or partner is in prison

In each of these examples, couples may consider their relationship to be on-going despite their physical separation.

When deciding if aggregation of resources should take place, we will consider many factors. Essentially what is to be established falls under two broad headings:

  • Do the parties live together?
  • If so, do they do so in the manner of spouses or civil partners?

The principal factors that we take into account are:

  • Evidence of the extent of co-habitation.
  • Duration of co-habitation..
  • Degree of continuity of co-habitation.
  • Reason for any interruption of co-habitation.
  • Degree of mutual support: financial, emotional and otherwise.
  • Acknowledgement by the parties or others of the relationship.
  • Whether there is a second home and, if there is, its purpose and location.
  • What is the intentionality behind any degree of living separate and apart

Questions to ask a client with more than one dwelling house

  • Does your client have an interest in a dwelling house other than the main one in which they live?
  • If so, how much money could they get by borrowing money on the security of the second house?

Non-qualified staff should refer to you to decide how much capital to include in the assessment.

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