Civil Keycard

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 which must include details of any exceptional financial difficulties the applicant or partner may be facing during the assessment period of seven 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 on these aspects of aggregation of partners’ resources can be found in the Keycard on our website.

The definition of a child, for the purposes of assessment of disposable income and capital, given in the Advice and Assistance (Scotland) Regulations 1996 and the Civil Legal Aid (Scotland) Regulations 2002 is the definition of a child as that given in section 1(5) of the Family Law (Scotland) Act 1985 (“the 1985 Act”).

When assessing the financial eligibility of children seeking civil advice and assistance and civil legal aid, the resources of any person who owes an obligation of aliment to that child, within the definition given in section 1(1)(c) or (d) of the 1985 Act, must be included, along with the child’s resources in establishing financial eligibility, unless:

• in the particular circumstances it would be unjust or inequitable to do so. If you consider this is the case, please contact us for advice before admitting the applicant to advice and assistance. When making an application for legal aid, please address the reasons why we should not take such resources into account, having regard to our published guidance.
• the child has a contrary interest with the person who owes a duty of aliment as described in section 1(1)(c) or (d) of the 1985 Act.

This does not apply when assessing the financial eligibility of children seeking children’s advice and assistance.

Further details can be found in the Children’s Legal Aid Keycard.

Subject matter of dispute means property which is at issue in the dispute or proceedings, and may not be available to the client at the conclusion of the matter.

It is not enough to show that a global crave for payment of a sum of money is being made. Rather, it is ownership of the property or asset that must be at issue in the proceedings.

Simply because an asset which could be used to satisfy the opponents claim exists, does not necessarily mean that an asset is in dispute.

We will consider whether the opponent is disputing ownership of the assets, or that ownership will only be resolved by the court action.

Detailed guidance can be found in the Financial Assessment section of the Civil Legal Aid guidance on our website.

Disposable capital

£1,716 maximum for eligibility*

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 level of capital shown in the section below if the applicant or their partner is of pensionable age (60 or over).

*  There is no financial eligibility test where advice and assistance is provided in a police station for a Section 44 consultation or a Section 32 interview under Part 1 of the Criminal Justice (Scotland) Act 2016, so this limit does not apply.

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 and the value of any disputed assets which are part of the subject matter of the advice.

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
• the value of any property or item that is the subject of the dispute.

Advice and Assistance Income and Capital Disregards

In addition, you should not include any of the following payments and benefits as capital, but where benefits have been accumulated by your client as savings, they should then be assessed as capital in the normal way:

• 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
  • Child benefit
  • 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)
  • Statutory maternity pay (non-occupational)
  • Statutory shared parental pay (non-occupational)
  • Widowed parent’s allowance
• State Pension Credit under the State Pension Credit Act 2002
• State retirement pension
• Tax Credits under the Tax Credits 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).

Do not assume that an applicant has no capital when they are in receipt of benefits – in certain circumstances a person can have up to £16,000 in capital and still receive benefits.

Standard allowances

Standard allowances against capital are deductible for the following persons:

• a partner whose resources have to be aggregated – who is considered as the first dependant and/or
• a dependant person who is wholly or substantially maintained.

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

Disregards for applicants of pensionable age

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

Examples

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

Applicant of pensionable age, with no dependants, 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.

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 (Income Support, an income-related employment and support allowance, income-based jobseeker’s allowance or Universal Credit).

“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.

This excludes income that is the subject matter of the dispute – for example, maintenance being claimed which is part of the subject matter of the advice. Deduct income tax and national insurance contributions from income.

*There is no financial eligibility test where advice and assistance is provided in a police station for a Section 44 consultation or a Section 32 interview under Part 1 of the Criminal Justice (Scotland) Act 2016, so this limit does not apply.

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 is in receipt of, or included in their partner’s award of, one of the following passporting benefits:

• 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.

We will verify a client’s receipt of one of the passporting benefits named above with the Department of Work and Pensions (DWP). To assist us in doing so, we have provided some information about what is required.

Applicant’s names

Please do not provide two surnames like “Smith or Jones”. Our automatic link with the DWP will not be able to confirm the benefits where two names are provided.

Please check the spelling of the name, for example McDonald or MacDonald. Again, the DWP automatic link will not confirm passport benefits where the name is spelt incorrectly.

Remember, if benefits are claimed in the name of the applicant’s partner, we also need the partner’s details (forename, surname, date of birth and National Insurance number) for the DWP check.

Other benefits and the DWP link

Our link with the DWP only checks the position with passport benefits. Many solicitors state “SLAB link to check” on cases where the applicant is not in receipt of a passport benefit. We are not able to check these cases. Tax credits cannot be verified by the automatic DWP link – working tax credits and child tax credits are awarded by HMRC.

Always make sure that passport benefits (Income support, Job Seeker’s Allowance, Employment and Support Allowance, and Universal Credit) are entered in the correct place to allow the automatic link to check these with the DWP. Do not enter these benefits as “Other benefits” as this will not be checked with the DWP, and we will come back and ask you to confirm what verification you have seen.

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.

Disregarded Benefits

Various benefits which the client may receive are disregarded in the financial assessment.
Do not include any of the following payments:

• Back to work bonus (payable under the Jobseekers Act 1995 any payment made under the Community Care (Direct Payments) Act 1996 or as a direct payment as defined in section 4(2) of the Social Care (Self-directed Support) (Scotland) Act 2013
• Any Welfare Fund payment
• Any payment made under the Windrush Compensation Scheme
• Any Windrush connected payment
• Any payment made under Part 4 of the Redress for Survivors (Historical Child Abuse in Care) (Scotland) Act 2021 (financial redress for historical child abuse), or any relevant payment made or due to be made prior to the date of commencement of the redress scheme
• Any payment made under the Scottish Infected Blood Support Scheme
• Any additional payment in terms of the Social Security (Additional Payments) Act 2022 (cost of living)
• Any temporary additional amount to the social fund winter fuel payment paid by virtue of the Social Fund Winter Fuel Payments (Temporary Increase) Regulations 2022 (cost of living)
• Payments under the Social Security Contributions and Benefits Act 1992 (except statutory sick pay) including:
  • Adoption pay
  • Attendance allowance
  • Bereavement allowance
  • Bereavement payment
  • Invalid care allowance (carer’s allowance)
  • Child benefit
  • Christmas Bonus for pensioners
  • Council tax benefit
  • Disability living allowance
  • Guardian’s allowance
  • Housing benefit
  • Incapacity benefit
  • Industrial injuries disablement benefit
  • Statutory maternity pay (non-occupational)
  • Statutory shared parental pay (non-occupational)
  • Widowed parent’s allowance
• Personal independence payment under Part 4 of the Welfare Reform Act 2012
• Child disability payment and short term assistance given in accordance with the Disability Assistance for Children and Young People (Scotland) Regulations 2021
• Adult disability payment and short term assistance given in accordance with the Disability Assistance for Working Age People (Scotland) Regulations 2022
• Armed forces independence payment under the Armed Forces and Reserve
  Forces (Compensation Scheme) Order 2011
• Tax credits under the Tax Credits Act 2002
• Child maintenance bonus
• Child support maintenance (paid through the Child Maintenance Service)
• Contribution-based jobseeker’s allowance
• Severe disablement allowance
• State retirement pension
• War widow’s and widower’s pension and war disablement pension
• Sums payable to holders of the Victoria Cross or George Cross
• State pension credit under the State Pension Credit Act 2002
• Contributory employment and support allowance
• Universal credit
• Scottish child payment
• Additional payments introduced to assist during the cost of living crisis via the Social Security (Additional Payments) Act 2023 and Social Fund Winter Fuel Payment (Temporary Increase) Regulations 2023.

Adults with Incapacity

You must assess all income and capital for the adult concerned, not those of the person making the application. However, the applicant’s resources should be included in cases where they are the partner of the adult.

Please refer to our earlier guidance on the definition of a partner.

Unlike civil legal aid, there are no circumstances where the application of the financial eligibility test has been waived.

Applications from children

The resources of any person who owes an obligation of aliment to that child, within the definition given in section 1(1)(c) or (d) of the 1985 Act, must be included,  along with the child’s resources in establishing financial eligibility unless it would be unjust or inequitable to do so (see “Advice & Assistance – assessing eligibility” above).

Mental Health ABWOR

Where you grant ABWOR, no means assessment is required. There is a means test for A&A.

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

Deduct the actual maintenance paid for the last seven days, not the standard allowance, if:

• the applicant and partner are living apart
• the applicant is paying maintenance for a dependant who is not part of the household.

This table applies to civil advice and assistance, except diagnostic civil advice and assistance, see the next table “Clients’ contributions in diagnostic cases” for these contributions.

Clients’ contributions in diagnostic cases

A different contribution scale applies to diagnostic civil advice and assistance.

Diagnostic civil advice and assistance is where the client’s problem is not among the specific categories approved for standard advice and assistance, and you are providing advice and assistance by way of a diagnostic interview, deciding whether further assistance can be offered, or if the client needs to be advised to contact another agency for help.

Where there is a diagnostic interview, the maximum contribution payable is £45.

The standard initial limits of authorised expenditure in civil advice and assistance are:

• Diagnostic – £50
• Standard – £135

The initial limit of £180 applies in certain specified situations where either advice and assistance or ABWOR is given. The £180 initial limit for advice and assistance applies where:

• you are satisfied the matter is likely to be resolved only by preparing for proceedings in a civil court for which legal aid is available, and
• it is likely (on the information provided to you) the applicant will qualify on financial grounds for civil legal aid, and
• it is reasonable in the circumstances of the case.

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.

We appreciate that in some circumstances, clients may not have documentary evidence available when initially 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 that they are eligible and give them advice. However, this should be on agreement that they will provide the evidence at the earliest opportunity. You should obtain the verification before seeking an increase in authorised expenditure.

If the client doesn’t provide evidence you must show in your application that reasonable attempts have been made to contact them.

Where client is in prison

If the client is serving a sentence or on remand, and received no income during the previous seven days, you should enter their income as “Nil”, and at the question on how they are supported answer “Serving a sentence” or “On remand” as appropriate. However, you must be clear that they did not receive any income during this seven day period, especially if they are paid monthly. You must also ask them about any savings or other capital they could use to fund their case.

Where attempts have been made to obtain verification

If you have been unable to see verification but have taken reasonable steps to obtain this, make sure you let us know about this. You should let us know what steps have been taken, such as the number of letters and/or phone calls at the question ‘If you have not been able to obtain financial verification for income, please explain how you were satisfied that you could grant advice and assistance and what reasonable steps you took or are taking to obtain this information’.

If your client has no income/capital

• tell us this and how they were supported in the last seven days if they have no income and were not in custody or on remand
• tell us if they are supported by parents, family and/or friends.

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.

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.

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.

The solicitor’s right to prior payment of fees and outlays out of any property recovered or preserved for a client under advice and assistance does not apply to property recovered or preserved by virtue of certain family proceedings listed in regulation 16(2)(b) of the Advice and Assistance (Scotland) Regulations 1996, to the extent set out in the regulation.

Please note the exemption under Regulation 16(2(b) affecting money or the value of property recovered or preserved by virtue of certain family proceedings, no longer applies where advice and assistance was provided on or after 1 April 2011.

The limits to be applied are:

In relation to advice and assistance granted on or after 1 April 2011 no exemption can be applied to:

•     any dwelling recovered or preserved for the client as a result of advice and assistance given to him by the solicitor
•     any money paid under an order made by the Employment Appeal Tribunal which continues in existence under section 20 of the Employment Tribunals Act 1996 or under any settlement arrived at to prevent or bring to an end proceedings in which such an order may be made
•     any payment of money in accordance with an order made under section 21 of the 1996 Act by the Employment Appeal Tribunal
•     any payment of money in accordance with an order made by an employment tribunal or under any settlement arrived at to prevent or bring to an end proceedings in which such an order may be made.

We pay fees and outlays according to the steps set out in section 12(3) of the Act. The Fund only pays as a last resort – you must first look to the client’s contribution, expenses paid by the opponent and property recovered or preserved by the applicant (subject to the exemptions set down in regulation 16(2) of the Advice and Assistance (Scotland) Regulations 1996.

If money or property is recovered, you can apply to us to waive this charge because either:

• it would cause grave hardship or distress to the client; or
• payment of your account from the money or property could only be effected with unreasonable difficulty or after unreasonable delay, provided you have taken all reasonable steps to have your account paid out of the money or property [regulation 16(3)(b)].

If, after we have paid a solicitor’s account under regulation 16(3)(b), we find that the person who received advice and assistance has:

• either received expenses, or recovered or preserved property, and
• not told us about it

we can recover the amount of fees and outlays paid, less any amount which would have been properly payable by way of fees and outlays under section 12(3)(d) of the Act had the person declared the expenses or property to us.

For further information about clawback under advice and assistance, and payment under regulation 16(3), you should refer to the guidance on our website.

If your client is the only “person concerned” (see meaning below) in terms of our regulations, and they are in receipt of or included in their partner or spouse’s award of any of the following benefits at the date of application, they will not have to pay a financial contribution towards their case if their application is successful:

• Income Support
• Income based Employment and Support Allowance
• Income based Jobseekers Allowance
• Universal Credit.

Meaning of “person concerned”: this means the person whose disposable income, disposable capital, and maximum contribution are to be determined or the person whose resources are to be treated as the resources of any other person, under our Regulations.

We will verify a client’s receipt of one of the passporting benefits named above with the Department of Work and Pensions (DWP).

Our link with the DWP only checks passport benefits. We are not able to verify any other benefits in payment.

To assist us please do not provide two surnames like “Smith or Jones”.

Our automatic link with the DWP will not be able to confirm the benefits where two names are provided.

Please check the spelling of the name as the DWP link will not confirm the benefit where the name is spelt incorrectly.

Remember, if the benefit claimant is the applicant’s partner, we also need the partner’s details to be correct for the DWP check.

Receipt of a passporting benefit does not preclude us from investigating representations or carrying out verification checks to validate that the person concerned has made a full disclosure of their circumstances to the DWP.

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 can be found either in section D of the CIV/SOL Family or CIV/SOL Non Family applications or in the Special Urgency application. To complete the form you need to apply the current eligibility limits and allowances – see next section “Disposable Income”.

Adults with Incapacity

Where the applicant is seeking a guardianship order relating to the welfare of the Adult or a combined order dealing with welfare and the financial affairs of the adult, no assessment of financial circumstances is undertaken. If the orders sought deal solely with the financial affairs of the adult, or relate to other orders such as variation or recall of orders, you must assess the disposable income and capital of the adult concerned, not those of the person making the application.

However, the applicant’s resources should be included in cases where they are the partner of the adult. Please refer to our earlier guidance on the definition of a partner.

Pension credits

You should disregard any income from a state pension credit under the State Pension Credit Act 2002.

However, you should fully assess any other income.

Applications from children

The resources of any person who owes an obligation of aliment to that child, within the definition given in section 1(1)(c) or (d) of the 1985 Act, must be included, along with the child’s resources in establishing financial eligibility unless it would be unjust or inequitable to do so.

If you consider this to be the case, please seek further advice from us.

If someone’s disposable income exceeds £3,521 they are eligible on income, but will have to pay a contribution. The following table sets out how the contribution should be calculated:

If someone’s disposable capital is between £7,853 and £13,017 they are eligible on capital, but will have to pay a contribution. This contribution is equal to the difference between their capital and £7,853. Unlike advice and assistance there are no statutory allowances from capital for partners or dependants.

You should refer to the Civil Legal Assistance guidance for information on clawback.

The requirement for someone receiving civil legal aid to pay any net liability to the Fund does not apply to property recovered or preserved under certain family proceedings listed in regulation 33(b) of the Civil Legal Aid (Scotland) Regulations 2002, to the extent set out in the regulation. This exemption no longer applies to civil legal aid granted on or after 1 April 2011.

In relation to civil legal aid granted on or after 1 April 2011 no exemption can be made in respect of any money payable under an order made by the Employment Appeal Tribunal or under any settlement arrived at to prevent or bring to an end proceedings in which such an order may be made.