Criminal 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. A contrary interest exists where the applicant’s partner is a co-accused, complainer or crown witness
• 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” or “impracticable” you must provide details of why you consider that the resources should not be aggregated. 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.

The definition of a child, for the purposes of assessment of disposable income and capital, given in the Advice and Assistance (Scotland) Regulations 1996.

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.

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

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).

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.

Examples of capital include:

• the amount that could be borrowed against all land and buildings the client or their partner own, 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

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).

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 dependents, 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 £1500, which is below the eligibility limit of £1,716 so they are financially eligible 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.

Disposable income

£245 a week maximum for eligibility

“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.

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

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.

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.

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

• 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
• check the spelling of the name, for example McDonald or MacDonald. The DWP automatic link will not confirm passport benefits where the name is spelt incorrectly
• if benefits are claimed in the name of the applicant’s partner, we need the partner’s 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. We are not able to check cases where the applicant is not in receipt of a passport benefit. You should obtain verification of non-passport benefits.

Always make sure that passport benefits are entered in the correct place to allow the automatic link to check these with the DWP. Do not enter these benefits as non-passport benefits as this will not be checked with the DWP.  If this is entered incorrectly then we will 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 (not paid in terms of the Child Support Act 1991)
• 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.
• rental income from other properties.

Disregarded Benefits

Various benefits which the client may receive are disregarded in the financial assessment.
You should 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
• payments under the Social Security Contributions and Benefits Act 1992 (except statutory sick pay):
  • Adoption allowance
  • Attendance allowance
  • Bereavement allowance
  • Bereavement payment
  • Care (Invalid) allowance
  • Child benefit
  • Christmas Bonus for pensioners
  • Council tax benefit
  • Disability living allowance
  • Guardian’s allowance
  • Housing benefit
  • Incapacity benefit
  • Industrial injuries disablement pension
  • Statutory maternity pay (non-occupational)
  • Statutory shared parental pay (non-occupational)
  • Widowed parent’s allowance.
• 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
• personal independence payment under Part 4 of the Welfare Reform Act 2012
• 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 Support Agency)
• 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
• Scottish child payment
• 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)
• 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.

Allowances

Do not make an allowance for any child for whom Foster care or Kinship care allowance is paid.

You should deduct the following standard allowances from income:

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.

Clients’ contributions

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.