We may set any conditions we consider expedient on a grant of legal aid to enable us to satisfy ourselves that it is reasonable for your client  to continue to receive legal aid [Section 14(2) of the Legal Aid (Scotland) Act 1986]. We have the power to modify these conditions, or to impose conditions or additional conditions, at any time before the conclusion of the proceedings [Regulation 27 Civil Legal Aid (Scotland) Regulations 2002].

Covid-19

For the period of the Covid-19 restrictions, where applicants may have difficulties in getting wage slips or bank statements from their bank, they can download their bank statements or screenshots and send them to us by email. We can also accept mini statements from the cash machine.

We are aware that not everyone has access to online banking and that banks are only dealing with priority matters by phone, and therefore it may not be possible for applicants to contact their banks for copies of statements. We will discuss with applicants what may be possible, including the options set out above. If there is no way of providing any verification, we’ll take the following approach:

Bank statements

If the applicant does not have access to online banking and is unable to provide the last three months’ consecutive bank statements, but they have some slightly older ones at home, we can accept these. The applicant will need to declare that their income and outgoings are generally still the same.

We can accept any other documentation they may have at home showing outgoings, such as mortgage approval letters, rent agreements etc.  If they cannot download and email these, they can take a photo on their mobile phone and attach it to an email and send it that way.

Payslips

If the applicant doesn’t have three recent payslips, but has older ones at home we can accept these. The applicant will need to declare that their salary has more or less remained the same.  As an alternative, if we can see their salary from their bank statement then we will use that.

Granting legal aid with conditions

We can grant the application with a condition where we have taken all steps with the applicant and where there is no or insufficient verification.

The condition will be that the applicant provides financial verification to demonstrate their eligibility at the date of grant as soon as it becomes available to you/your client and in any event within the next three months if possible.

Failure to provide the verification could result in the end of the grant of legal aid, depending on the aid type.

How payments to self-employed people during Covid-19 affects eligibility for legal aid

The Scottish & UK Governments have offered financial support to self-employed people whose business is affected by Covid-19. This update describes how these will be treated for the purposes of assessing eligibility for legal aid.

Scottish Government Business Support Scheme 

This is a one-off grant of either £10,000 or £25,000 (linked to the non-domestic rates system) paid through local authorities.

To assess eligibility for legal assistance, this payment will be disregarded in all aid types.

UK Government Self-employment Income Support Scheme (SEISS) 

This is the support put in place for the self-employed as they are ineligible for the Coronavirus Job Retention Scheme. Applicants will get a taxable grant which will be 80% of the average profits from the last three years, up to a maximum of £2,500 per month for 3 months. It will be paid directly into an individual’s bank account, in one instalment, expected to be by June. A second grant can be claimed in August 2020. For the purpose of assessment of eligibility for Universal Credit, SEISS is treated as a receipt for the purposes of calculating the claimant’s self-employed earnings.

How to treat the SEISS payment in financial eligibility assessments

  • To assess eligibility for legal assistance, these payments will not be treated as capital for any aid type.
  • The payments will be treated as income. It will be included in the calculation of net profit and the applicant’s drawings. It is the drawings figure which will be used to assess a self-employed applicant’s disposable income.
  • For all aid types, the income should be apportioned over the three month period the SEISS grant is intended to cover.
  • As with all income, proof of payment should be provided.

For Civil legal aid, we will confirm that that they will apply for the second grant which is available in August. We can therefore make an assessment of their projected 12 month income using the period April – August. A conditional grant can be made and the case scheduled for a review after August.

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