This Keycard sets out the various eligibility limits and contributions in children’s advice and assistance and children’s legal aid in force from 8 April 2019. It should be used only where the advice or representation is being given about proceedings under the Children’s Hearings Act (Scotland) Act 2011.

For more guidance on eligibility, contributions and clawback, please refer to the Legal Aid Guidance.

This page contains the keycard information for:

  •     Advice and assistance
    •         Documentary evidence of your client’s financial circumstances
    •         Assessing eligibility on capital
    •         Assessing eligibility on income
    •         Contributions for advice and assistance
    •         Authorised expenditure
  •     Assistance by way of representation
  •     Automatic Children’s Legal Aid
  •     Children’s Legal aid
    •         Financial eligibility
    •         Clients’ contributions

You can also download this keycard as a PDF.

Definitions used in the keycard

Partner

In this Keycard, the word “partner” means someone the applicant normally lives with as a couple, whether or not they are married and of the same or different sex.

The resources of the applicant’s spouse or partner must be included in the assessment of the applicant’s eligibility unless:

  • there is a contrary interest in the matter  for which the advice is sought
  • the applicant and their spouse or partner are separated – by “separated” we mean that they consider the marriage or relationship to be at an end. In all cases where the applicant is a prisoner, “living separate and apart” would only apply where the marriage or relationship is at an end.
  • it would be inequitable or impracticable to aggregate their resources. If you consider it to be “inequitable” you must provide details of why you consider that the resources should not be aggregated.  This must include details of any exceptional financial difficulties the applicant or partner may be facing during the assessment period of 7 days up to the grant of advice and assistance.  If you consider it to be impracticable, you should also explain why it is not possible to contact the partner to obtain information on their resources where this is not known by the applicant.

Further information and guidance on these aspects of aggregation of partners’ resources, can be found in the Advice and Assistance sections of our legal aid guidance.

Child

The definition of “a child” given in the Children’s Legal Assistance (Scotland) (Miscellaneous Amendment) Regulations 2013 is that given in section 199 of the Children’s Hearings (Scotland) Act 2011.

If the applicant is a child in terms of this definition and is, in your view, capable of giving instructions and receiving advice, the resources to be taken into account are those of the child only. In Children’s Legal Assistance, the resources of a child are not aggregated with those of any person owing an obligation of aliment to the child.

Advice and assistance

Documentary evidence of clients' financial circumstances

You are responsible for deciding if their clients are financially eligible for advice and assistance. You should refer to the regulations, this Keycard and our legal aid guidance about assessing disposable income and capital.

If you apply the tests incorrectly, we can withhold or recover payments made to firms for work done under an incorrect grant of advice and assistance.  Our guidance is designed to avoid the risk of making an incorrect grant.

Most clients should be able to give you documentary evidence of their financial position. When arranging an initial meeting with a solicitor, the client should be asked to bring documentary evidence of their capital and income with the proof of identity you need when signing up new clients, whether legally aided or not. This advice applies equally to repeat clients. It is not safe for you to assume that your client’s financial position has not changed since the last time you gave them advice.

Keep a copy of the verification, or how you satisfied yourself that the client was eligible, on your file so that it can be seen by a quality assurance peer reviewer or one of ourcompliance auditors.

We recommend that you should see, wherever practicable, the following evidence:

For income

  • where the client is employed – a recent wage slip or bank statement
  • where the client receives passport benefits – we will check this directly with the DWP
  • where the client receives non-passport benefits – a letter of award  (in the few cases where it is paid this way),  a bank statement (which might simply be an ATM receipt showing the credit) or a mobile bank app.

For capital:

  • the most recent bank statement and statement/passbook for savings; and/or certificate of investments held.

In Legal Aid Online, the available options include ‘bank statement’ and ‘wage slip’.  Only use the ‘Other’ option if the document you have seen is not listed.  Otherwise, it will delay your application because we need to check it.  Quite often we see ‘bank statement’ selected and then ‘Other’ option something like “I have seen the client’s bank statement”.  You don’t need to duplicate the information.

Where you have not seen a statement and you select the evidence option “Applicant has signed online declaration form” you should note in the file why it was not possible to see a statement(s) and what information your client gave about any capital savings they may have in those accounts.

No verification available

We appreciate that in some circumstances, clients may not have documentary evidence available when consulting a solicitor.  For example:

  • in an emergency;
  • where they are a victim of domestic abuse and cannot return home;
  • where they are part of an acrimonious dispute which prevents access to documentation;
    or
  • where they are in custody.

Where they do not have access to documentary evidence, you may be satisfied from the limited information available, but you should then seek verification from the client at the earliest opportunity, and before seeking any increase in authorised expenditure.

We understand that there are situations where obtaining evidence of income and capital will be difficult, and this guidance sets out the information which we need to help us ensure that you have taken reasonable and practicable steps to assess that clients are financially eligible to receive assistance.

Nil Income and/or Capital:
If your client has no income/capital:

  • Tell us this and how they are supported if they have no income and are not in custody or on remand;
  • Tell us if they are supported by parents, family, friends etc.;
  • If the applicant has a bank account, you should try to get a bank statement from the client to confirm the position.  Again, if this is not provided by the client, make sure you tell us about the steps you have taken to obtain this.

Verification if there is no capital:
If the client has no capital, please do not say something like “cannot prove a nil”. Most applicants will have at least one bank account, especially if they own or rent their home, have any regular outgoings which are paid by standing order or direct debit or receive a salary or state benefits.   The balance(s) held in these accounts should be recorded in the application as capital savings.  Where the account is a current account or the only account held by the applicant, the balance held in the account once all monthly standing orders and direct debits have deducted should be recorded. You can then select “Bank Statement” from the capital verification options as evidence seen.

If your client has no bank account:
You should select ‘Other’ from the capital verification options and then provide information about how you satisfied yourself that your client does not have any capital.

Assessing eligibility

A client’s income and capital must be within the current financial limits to qualify for advice and assistance.

We recommend you assess their disposable capital before assessing income, since if they do not qualify on capital, they are ineligible for advice and assistance – even if they receive “passport” benefits (that is, Income Support, income-related employment and support allowance, income-based jobseeker’s allowance or Universal Credit).

Assessing eligibility on capital

Disposable capital – from 8 April 2019 – £1,716 maximum for eligibility

Working out your client's total capital

A person whose disposable capital exceeds the capital limit of £1,716 is NOT eligible for advice and assistance, whatever their disposable income or eligibility for a passport benefit.

To calculate disposable capital, you should:

  • calculate your client’s total capital
  • deduct from the total capital the standard allowances
  • disregard the levels of capital shown in the section below if the applicant is of pensionable age.

Working out your client’s total capital

Capital means savings and anything else of value the client and their partner, if appropriate, own.  This excludes the client’s main residence.

Examples of capital include:

  • the amount that could be borrowed against all land and buildings the client or their partner own, other than the client’s main home, including interests in timeshares
  • money in the bank, building society, post office, premium bonds, national savings certificates etc
  • investments, stocks and shares, including ISAs
  • money that can be borrowed against insurance policies
  • 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
  • money owed to the client or their partner
  • 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.

You should NOT include in capital:

  • the 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.

Standard allowances against capital are deductible for the following persons living with the applicant:

  • a partner whose resources have to be aggregated – who is considered as the first dependant

and/or

  • a dependent person who is wholly or substantially maintained.
For the first such dependant £335
For the second such dependant £200
For each other such dependant £100

No allowances should be made for any children where the applicant receives Foster Care Allowance.

Disregards for applicants of pensionable age

Where the applicant is of pensionable age (60 in all cases), with a weekly disposable income (excluding investment income) below £105, you should disregard capital as:

Weekly disposable income up to £10 disregard £25,000
Weekly disposable income £11 – £22 disregard £20,000
Weekly disposable income £23 – £34 disregard £15,000
Weekly disposable income £35 – £46 disregard £10,000
Weekly disposable income £47 – £105 disregard £5,000

Examples

Applicant of a pensionable age, with no dependents, capital of £21,500 and a weekly disposable income of £20 is entitled to a disregard of £20,000.  This leaves then with Disposable Capital of £1500, which is below the eligibility limit of £1,716 so they are financially eligible to for advice and assistance.

Applicant of pensionable age, with no dependents, capital of £25,000 and a weekly disposable income of £20 is entitled to a disregard of £20,000.  This leaves them with Disposable Capital of £5,000 which exceeds the eligibility limit of £1,716 so they are not eligible for advice and assistance.

Assessing eligibility on income

Disposable income – £245 a week maximum for eligibility

A person whose disposable income exceeds the income limit of £245 a week is NOT eligible for advice and assistance, whatever their disposable capital, unless they receive a passport benefit (Universal Credit, Income Support, an income-related employment and support allowance or income-based jobseeker’s allowance).

“Income” means the total income, from all sources, which the client and their partner received or became entitled to during or in respect of the seven days up to and including the date of the application.

Calculating eligibility on income

To calculate eligibility on income, you should:

  • check if your client receives a passport benefit (see below)
  • calculate your client’s net weekly income
  • deduct from the net weekly income the standard allowances
  • calculate if they qualify and if they have to pay a contribution.

When calculating monthly income, multiply it by 12 and then divide by 52 to work out the weekly figure.  To make assessment easier, round the figure up or down to the nearest pound.

Passport benefits – automatically eligible on income

If the client or their partner receives a passport benefit:

  • Income Support
  • an income-related employment and support allowance
  • income-based jobseeker’s allowance
  • Universal Credit.

they qualify automatically on income for advice and assistance and will not have to pay a contribution. However, you must still assess your client’s disposable capital.

Calculating net weekly income

You must include:

  • earnings (including any tips), drawings or profits from business
  • maintenance payments (unless paid through the Child Support Agency)
  • private or employee pensions
  • occupational sick pay
  • occupational maternity pay
  • student grants or bursaries (but do not include student loans)
  • National Asylum Support Service (NASS) payments
  • money received from friends and relatives (other than loans)
  • income from savings and investments
  • dividends from shares.

Various benefits which the client may receive are disregarded in the financial assessment. You should NOT include:

  • Working Tax Credit
  • Child Tax Credit
  • Pension Credit
  • Child Benefit
  • Attendance Allowance
  • Bereavement Allowance
  • Bereavement Payment
  • Child Maintenance Bonus
  • Child Support Maintenance (only if paid through the Child Support Agency)
  • Christmas Bonus
  • Contribution-based Jobseeker’s Allowance
  • Contribution-based Employment and Support Allowance
  • Council Tax Benefit
  • Disability Living Allowance (DLA)
  • Personal Independence Payments
  • Armed Forces Independence Payments
  • Guardian’s Allowance
  • Housing Benefit
  • Incapacity Benefit (Incap)
  • Industrial Injuries Disablement Pension  (IIDP)
  • Care (Invalid) Allowance
  • Severe Disablement Allowance
  • Sickness Benefit
  • State Retirement Pension
  • Statutory Maternity Pay (non-occupational)
  • Statutory Sick Pay (non-occupational)
  • Sums payable to holders of the Victoria Cross or George Cross
  • War Disablement Pension
  • War Widow’s/Widower’s Pension
  • Widowed Parent’s Allowance.

Particular situations

Foster Care Allowance, Adoption Allowance and Kinship Carers’ Allowance – do not include any of these allowances the applicant receives in the calculation for disposable income. Do not deduct dependant’s allowances for capital and income for the foster children.

Applications from children – Provided the child is, in your opinion, capable of giving instruction and receiving advice the resources of the child only should be taken into account. You do not need to aggregate the resource of any person owing an obligation of aliment to a child when assessing financial eligibility for children’s advice and assistance and ABWOR.

Allowances

You should deduct the following standard allowances against income for the maintenance of:

Partner  living with the applicant £41.75
Any dependant person, adult (other than partner) or child (but do not include any foster children), who is wholly or substantially maintained, being a member of the applicant’s household £66.90

Client's contributions

Disposable income range Maximum contribution
Disposable Income not exceeding £105 £0
Exceeding £105 but not exceeding £112 a week £7
Exceeding £112 but not exceeding £119 a week £14
Exceeding £119 but not exceeding £126 a week £21
Exceeding £126 but not exceeding £133 a week £28
Exceeding £133 but not exceeding £140 a week £35
Exceeding £140 but not exceeding £147 a week £42
Exceeding £147 but not exceeding £154 a week £49
Exceeding £154 but not exceeding £161 a week £56
Exceeding £161 but not exceeding £168 a week £63
Exceeding £168 but not exceeding £175 a week £70
Exceeding £175 but not exceeding £182 a week £77
Exceeding £182 but not exceeding £189 a week £84
Exceeding £189 but not exceeding £196 a week £91
Exceeding £196 but not exceeding £203 a week £98
Exceeding £203 but not exceeding £210 a week £105
Exceeding £210 but not exceeding £217 a week £112
Exceeding £217 but not exceeding £224 a week £119
Exceeding £224 but not exceeding £231 a week £126
Exceeding £231 but not exceeding £245 a week £135

Initial limit of authorised expenditure

Children’s advice and assistance
£95 is the initial limit of authorised expenditure for children’s advice and assistance.

Increases in authorised expenditure
An increase in authorised expenditure is only effective from the date we grant it.

We cannot authorise increases retrospectively and if you do any work not covered by the authorised expenditure at any given time, we cannot pay for it.

Assistance by Way of Representation (ABWOR)

For ABWOR granted for proceedings under the Children’s Hearings (Scotland) Act 2011, the financial eligibility criteria and contributions are the same as in advice and assistance.

If you have previously granted advice and assistance for advice in relation to the same proceedings under the Children’s Hearings (Scotland) Act 2011, then you will already have established their eligibility and any contributions payable. There is no need for a separate grant of advice and assistance to apply for ABWOR for representation at the hearing. You can apply for ABWOR under the same grant of advice and assistance by making an increase application.

Automatic Children’s Legal aid

If you are instructed as Duty solicitor to represent the child at any one of the four specified hearings namely:

  • An application to sheriff for variation or termination of a child protection order (sheriff court proceeding)
  • A second working day children’s hearing following the granting of a child protection order (children’s hearing proceeding)
  • A children’s hearing where placement of the child in secure accommodation is in contemplation (children’s hearing proceeding)
  • A S69(3) children’s hearing where child been arrested and detained in a place of safety for the alleged commission of a criminal offence (children’s hearing proceedings)

then, Automatic children’s legal aid can be made available to a child client, if that child is not already in receipt of ABWOR, (which would tend to suggest he/she had already instructed a solicitor of choice), and without the need for tests being applied to financial eligibility or the merits of the application.

If you’re not acting as Duty Solicitor but have been instructed by the child as the child’s solicitor of choice then automatic children’s legal aid IS NOT AVAILABLE. However you may grant ABWOR to cover the cost of representing your client at any one of the four specified hearings without the need to apply the financial or merits tests.

Children’s legal aid

Eligibility limits

To do work as a matter of special urgency under regulation 18, you have to complete the online declaration form which is designed to assist you to assess your client’s financial eligibility.  The form, CHLA/LAO 2011 ACT can be found on our website by accessing the Forms and Declarations option. To complete the form you may need to apply the current eligibility limits and allowances, which are:

Disposable capital

the capital eligibility limit, on or below which a person will not have to pay a contribution £7,405

If the applicant’s disposable capital exceeds £7,405 they can only be considered financially eligible if it can be shown that it would cause undue hardship if children’s legal aid is not granted. If the application is granted on these grounds the applicant will be expected to contribute the amount of capital they own which exceeds £7,405.

A person involved in the proceedings in terms of section 126 of the Children’s Hearings (Scotland) Act 2011 whose disposable capital exceeds £7,405 can only be granted children’s legal aid if it can be shown that not to do so would cause undue hardship to them or their dependants.  If the application is granted on these grounds the applicant will be expected to contribute the amount of capital they own which exceeds £7,405.

Unlike advice and assistance there are no statutory allowances from capital for partners or dependants.

Disposable income

The lower disposable income limit, on or below which a person will not have to pay a contribution from income £68.00 per weeek
The upper disposable income limit, above which a person will be ineligible on income £222.00 per week

Calculating eligibility on income

To calculate eligibility on income, you should:

  • check if your client receives a passport benefit (see below)
  • calculate your client’s net weekly income
  • deduct from the net weekly income the standard allowances and any reasonable expenditure
  • calculate if they qualify and if they have to pay a contribution.

When calculating monthly income, multiply it by 12 and then divide by 52 to work out the weekly figure. To make assessment easier, round the figure up or down to the nearest pound.

Passport benefits – automatically eligible

If the client or their partner receives a passport benefit:

  • Income Support
  • income-related employment and support allowance
  • income-based jobseeker’s allowance
  • Universal Credit.

they qualify automatically on income for Children’s Legal Aid and will not have to pay a contribution. If they are in receipt of a passport benefit there is no requirement to assess the disposable capital.

Calculating net weekly income

You must include:

  • earnings (including any tips), drawings or profits from business
  • benefits (except those listed below)
  • maintenance payments (unless paid through the Child Support Agency)
  • private or employee pensions
  • occupational sick pay
  • occupational maternity pay
  • student grants or bursaries (but do not include student loans)
  • National Asylum Support Service (NASS) payments
  • money received from friends and relatives (other than loans)
  • income from savings and investments
  • dividends from shares.

Various benefits which the client may receive are disregarded in the financial assessment. You should NOT include:

  • Pension Credit
  • Disability Living Allowance (DLA)
  • Personal Independence Payments
  • Armed Forces Independence Payments

 Allowances for a partner and dependants

Partner living with the applicant £41.75
For any dependent person who is wholly or substantially maintained, being a member of the applicant’s household, who is not entitled to any income from any source in their own right £66.90

If the applicant’s disposable income capital exceeds £222 per week, they can only be considered financially eligible if it can be shown that it would cause undue hardship if children’s legal aid is not granted. If the application is granted on these grounds the applicant will be expected to pay a contribution based on their actual disposable income.

A person involved in the proceedings in terms of section 126 of the Children’s Hearings (Scotland) Act 2011 whose disposable income exceeds £222 per week can only be granted children’s legal aid if it can be shown that not to do so would cause undue hardship to them or their dependants. If the application is granted on these grounds the applicant will be expected to pay a contribution based on their actual disposable income.

Particular situations

  • Applications by children

It is not required to aggregate the resources of any person who owes an obligation of aliment to the child, with that child’s resources in establishing financial eligibility in assessing financial eligibility for children’s legal aid.

Clients’ contributions

Contributions in children’s legal aid are linked to the type of proceedings and are grouped in the table below according to the relevant section of the Children’s Hearings (Scotland) Act 2011.

Contributions in children’s legal aid will be calculated by us but this table shows how contributions will be calculated using examples of weekly disposable income of £100, £130, £160 and £222.

Type of proceedings under the Children’s Hearings (Sc) Act 2011 S98,S99,S160 S101,S110,S154,S161,S162,S166,S48 S163, S164, S165, S167
Average duration 4 weeks 12 weeks 24 weeks
Weekly disposable income £100 Contribution is £25.60

Calculation:
£100-£68 = £32 (£32@20%x4)

Contribution is £57.60

Calculation: (£32@15%x12)

Contribution is
£76.80
Calculation: (£32@10%x24)
Weekly disposable income £130 Contribution is £73.60

Calculation: £25.60 + (£30@40%x4)

Contribution is
£147.60
Calculation:
£57.60 + (£30@25%x12)
Contribution is
£220.80
Calculation: £76.80
+ (£30@20%x24)
Weekly disposable income £160 Contribution is
£139.60
Calculation: £73.60 + (£30@55%x4)
Contribution is
£309.60
Calculation:
£147.60 + (£30@45%x12)
Contribution is
£436.80
Calculation:
£220.80 + (£30@30%x24)
Weekly disposable income £222 Contribution is
£313.20
Calculation: £139.60 + (£62@70%x4)
Contribution is
£808.08
Calculation:
£309.60 + (£62@67%x12)
Contribution is
£1032.00
Calculation:
£436.80 + (£62@40%x24)

 

We have noted the various sections of the Children’s Hearings (Scotland) Act 2011 that govern proceedings in the top row. We have assigned average duration times to these cases, which are noted in the second row: sections 98, 99 and 160 cases have been assigned an average duration of 4 weeks; cases under sections 101, 110,154, 161,162, 166 and 48 have been assigned a duration of 12 weeks; and those under sections 163, 164, 165 and 167 have been assigned an average duration of 24 weeks.

The first column shows some average disposable incomes, £100, £130, £160 and the current maximum £222. The next column shows what the applicant’s contribution from the average disposable incomes used in the illustration will be if they are involved in proceedings under Sections 98, 99 and 160, the second column what they will pay if involved in proceedings under Section 101, 110, 154,161,162 166 and 48 and so on.

In order to calculate the contribution you need to know:-

  • The applicant and any partner’s (if appropriate) actual disposable income.
  • Which section of the 2011 Act applies to the proceedings. The table below illustrates how we will calculate the contribution

The table below illustrates how we will calculate the contribution:

Proceedings S98, S99, S160  S101, S110, S154, S161, S162, S166, S48 S163, S164, S165, S167
Disposable income of up to £100 Example disposable income of £100

Step 1: £100 – £68.00
Step 2: Multiply balance x 20% x 4 = Contribution (Answer A)

 

Example disposable income of £100

Step 1: £100 – £68.00
Step 2: Multiply balance x 15% x 12 =
Contribution (Answer A)

 

Example disposable income of £100

Step 1: £100 – £68.00
Step 2: Multiply balance x 10% x 24 =
Contribution (Answer A)

 

 £101-130 Disposable income of
£120
Step 1: £120 – £100
Step 2: Multiply balance x 40% x 4 = Answer B
Step 3: Contribution = Answer A + Answer B
Disposable income of
£120
Step 1: £120 – £100
Step 2: Multiply balance x
25% x 12 = Answer BStep 3: Contribution = Answer A + Answer B
Disposable income of
£120
Step 1: £120 – £100
Step 2: Multiply balance x
20% x 24 = Answer BStep 3: Contribution = Answer A + Answer B
 £131-160 Disposable income of
£140
Step 1: £140 – £130
Step 2: Multiply balance x 55% x 4 = Answer C
Step 3: Contribution = Answer B + Answer C 
Disposable income of
£140
Step 1: £140 – £130
Step 2: Multiply balance x 45% x 12 = Answer CStep 3: Contribution = Answer B + Answer C

 

Disposable income of
£140
Step 1: £140 – £130
Step 2: Multiply balance x
30% x 24 = Answer CStep 3: Contribution = Answer B + Answer C

 

 £161-222 Disposable income of
£200
Step 1: £200 – £160
Step 2: Multiply balance x70% x4 = Answer D
Step 3: Contribution = Answer C + Answer D
Disposable income of
£200
Step 1: £200 – £160
Step 2: Multiply balance x67% x12 = Answer DStep 3: Contribution = Answer C
+ Answer D
Disposable income of
£200
Step 1: £200 – £160
Step 2: Multiply balance x40% x24 = Answer DStep 3: Contribution = Answer C
+ Answer D