2A.2 General position
2A.3 The client’s responsibilities
2A.4 Capital: check it first even if your client is receiving passported benefit
2A.5 Capital: documentary evidence
2A.7 Employed applicants
2A.8 Self-employed applicants
2A.10 No income
2A.11 Verification of passported benefits
2A.12 Cases where no documentary evidence of eligibility is immediately available
2A.13 Verification in prisoners’ cases
2A.14 Age of documentary evidence
This chapter was added in October 2010.
The purpose of this guidance is to help ensure that only those who are eligible for advice and assistance receive it.
You can only provide advice and assistance if you have satisfied yourself the client is eligible under the Act and regulations. For the client to be financially eligible, their disposable income and disposable capital, and that of their spouse or partner, must be within the limits set by the regulations. In assessing eligibility, you must have regard to our guidance, in accordance with the regulations.
We have prepared this guidance after consultation with the Law Society, other representative bodies such as the Family Law Association and APIL and individual solicitors. It sets out approaches consistent with existing good practices already in place in many firms, and with the approaches of legal aid authorities in other jurisdictions in the UK and beyond. It should help you do this with the least bureaucracy.
We do not want the guidance to act as a barrier to access to justice nor to penalise solicitors who have acted and proceeded in good faith. We have attempted to identify the difficulties solicitors may have in certain circumstances or types of cases and how to address such situations. We welcome your comments on any areas you feel we have not covered.
In general, you should always get documentary evidence of financial eligibility as early as possible, preferably at the initial meeting unless there is real urgency, and keep this on file. The onus is on the client to give you the necessary information. This will help you minimise the work you have to do to determine eligibility.
You cannot, under the terms of the regulations, charge for any time or work involved in obtaining information about, or assessing, financial eligibility, or for the cost of writing for any verification. For up-to-date information about eligibility limits use the Keycard.
You must get the applicant to sign the attached online declaration form, AA/VERF/MAND, allowing enquiries to be made of third parties such as employers, benefits providers and banks, and use this authority to obtain any necessary documentary evidence the applicant has not given you. You should not, however, start to act until you are satisfied your client is eligible.
Most meetings with clients in civil and children’s cases are by appointment. We recommend that firms should put into place, and consistently apply, procedures similar to those for money laundering, and explain to the client when the appointment is made what documentation they should bring to the first meeting. Sometimes you may be satisfied that a client is financially eligible even though they have not brought this documentation to the first meeting – for example, where you have a long-standing solicitor/client relationship – and decide to give them advice and assistance. If so, you should clearly show this on your files, and it is important you have clear and well-applied procedures for following up any undertaking to produce the documentation at a later date or meeting.
It is important you make your clients aware of their responsibilities. They need to know their entitlement to publicly-funded legal assistance is subject to their meeting certain criteria, and that they should be able to show they meet these, in the same way as they would for other public services, such as getting benefits, a passport or a driving licence. It is important that you advise clients of the potential consequences of providing false information.
We recommend you get details of the client’s capital position first, as it can sometimes be easier to do (for example, by simply examining of a bank statement) and because it allows you to address any misunderstandings about eligibility at an early stage.
At the date of this guidance, if the client’s capital exceeds £1,716 they are ineligible for advice and assistance, regardless of their disposable income, unless the disregard for applicants of pensionable age applies. You should check the Keycard for current eligibility levels. They are ineligible even if they are receiving a passported benefit. This point is important as many applicants, and some solicitors, have mistakenly thought receiving a passported benefit in itself makes the client financially eligible for advice and assistance. Someone may hold capital well over £1,716, in some cases up to £16,000 and still qualify for a range of benefits, including passported benefits. They may have up to £6,000 with no effect on entitlement to any of the passported benefits, any excess between £6,001 and £16,000 affecting not eligibility for the benefit but the amount paid. However, this would not mean that they qualified financially for advice and assistance.
To summarise: receiving a passported benefit does not make an applicant eligible on capital.
For capital, you should ask to see:
You should not be satisfied by a bank statement alone. You should specifically ask whether the applicant has other forms of capital, such as savings accounts or investments, and if they do you should see evidence of those.
Many applicants may no longer have paper bank statements but may instead have on-line banking facilities or a banking app. In such cases you should still view the statements but we accept that there may be no paper copy for you to retain. If the verification you have undertaken has been by way of viewing a balance and transactions on-line or via an app you should note this on the application
Capital is not limited just to money held in a bank or building society account. It includes items such as:
We accept that if a client says they do not have any of these, it is difficult for you to get evidence they do not. If you can obtain any such evidence, keep a copy on file, but you should, as a minimum, be able to show that you have asked about each of these items. The online advice and assistance online declaration AA/LAO/CIV and form AA/FIN/CIVincludes a declaration that you may find helpful for this; you should get the client to review and sign this and retain it on your file.
Income is likely to come from one of three sources:
If applicants declare no income, it is important that you ask them to explain how they support themselves.
For all applicants, including those declaring no income, you can get good information about income and outgoings from bank statements, so you should always ask the applicant to bring these. Most benefits and wages are paid into bank accounts. If an applicant claims to have no bank account you should decide if this is likely and reasonable and record on what basis you accepted the position. You may be satisfied from the information on a bank statement that the applicant is eligible for advice and assistance, but we list below evidence you may wish to see as an alternative to or in addition to a bank statement.
The latest wage slip is the best evidence, but you may also be satisfied by seeing, for example, a recent letter of appointment confirming the salary, other correspondence from an employer or a very recent P60. The applicant may have more than one type of income or capital – for example, wages and benefits – you should get verification of each type.
It is also possible to accept a bank statement showing the net pay received. However, it is important to remember that the only allowable deductions from pay in advice and assistance are tax and national insurance. Some employees may have other significant deductions made at source. For example those working in financial services may have their mortgage repayments deducted directly from their salaries by their employers. It is important, therefore, that if you intend to use a bank statement as evidence of earnings that you check with the client that there are no significant deductions from pay other than those allowed by regulation. When there are such deductions you should obtain additional documentary evidence such as the payslips.
Business accounts, bank statements (personal and business) or recent audited accounts are helpful in evidencing income, but in the absence of these the onus is on the applicant to satisfy you about their income.
Benefits are paid directly into bank or post office accounts, so bank statements are once again a good source of information and verification. Alternatively, you could ask for the most recent award letter or other correspondence from the Department for Work and Pensions (DWP).
We explain later in this guidance about the direct link we have with the DWP to check passported benefits.
When an applicant declares no income, you should still take steps to verify this. You should ask to see a bank statement in all cases to confirm there is no income or capital. If the applicant claims to have no such account, and you are satisfied, you should record this.
If the applicant is a young person and claims to be living with their parents you may either ask for confirmation of that from the parents or judge that the applicant’s age and circumstances make this likely to be true. For older applicants you should ask and record how they support themselves without any income, decide whether this is credible, and record the basis for your decision.
It is your responsibility to satisfy yourself that the applicant is financially eligible. However, we now have a direct link with the Department for Work and Pensions, which allows us to check cases where the client is receiving passport benefits – that is, income support, income-based jobseeker’s allowance, income-related employment and support allowance and Universal Credit. Where a client tells you they receive one of these benefits, we can confirm this through the link and tell you promptly of any information to the contrary in the DWP records. However, you must provide the client’s national insurance number and date of birth on the form to allow us to do this. You must also provide this information in respect of any spouse or partner to whom the benefit is paid, since we have to take into account the resources of spouses or partners.
If we cannot confirm through the link that the applicant is receiving the benefit, we will treat the application as though you had not yet verified the client’s income and will contact you and your client for further information.
Although in general you should not act until you have verified your client’s capital and income by seeing documentary evidence, we accept that occasionally it may not be possible, at least in the early stages of the case, to get that evidence. For example, your client may have had to flee the family home because of domestic violence and be unable to get at the evidence, or may be in custody or detention – for example, in a matter related to immigration or asylum. You should explain this on the application for advice and assistance/ABWOR or for an increase.
It may also be difficult to get documentary evidence from applicants with literacy or mental health issues or chaotic lifestyles, but even in these cases you should try to get it and, if you cannot, clearly explain to us why you have granted advice and assistance/ABWOR.
Even if documentary evidence is not available, this may be only temporary and you should continue, as the case progresses, to try to get it. With each application for an increase you should explain why it is not reasonably possible to obtain documentary evidence of financial eligibility. In such cases if
we will honour the increases we granted and assess and pay your account accordingly, subject to the normal assessment procedures. However, we will seek repayment from your client.
Under the terms of the regulations, the resources of spouses and partners have to be taken into account when assessing financial eligibility except where the opponent has a contrary interest, the parties are living separate and apart or, in all the circumstances of the case, it would be inequitable or impractical to do so.
The parties are not automatically “living separate and apart” for the purposes of financial assessment just because the applicant is in prison. For the spouse or partner’s financial resources to be disregarded the marriage or relationship must be at an end.
You need, therefore, to satisfy yourself about the financial resources of a prisoner’s spouse or partner and to obtain the verification described in this guidance unless one of the three exceptions set out in the first paragraph above applies.
What the applicant has to show is their financial position in the seven days before advice and assistance/ABWOR was granted. Ideally, therefore, the documentation should cover that specific period, but we accept that this will not always be possible for a number of reasons. For example, many wage-slips and bank statements are only issued once a month, and benefit awards/confirmatory letters may only be issued annually.
Where this is the case, you should also question the applicant to ensure there have been no changes since the date of the document, such as a substantial change to the balance shown on a bank statement. You should keep a note of the questions and the responses that satisfied you about the client’s financial eligibility and, if necessary, make enquiries of third parties as authorised by the client’s declaration.
You should get the most recent documentation you practically can to satisfy you initially before you admit the client to advice and assistance/ABWOR. As the case progresses, you can ask for the next wage-slip or statement that is issued. You could then use the additional, up-to-date information to reassess eligibility and if necessary to recalculate any contribution the applicant has to pay.