This Keycard sets out the various eligibility limits, contributions and clawback levels in advice and assistance and civil legal aid in force from 3 April 2017. During the course of this year there may be further updates and changes to this 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
it would be inequitable or impracticable to aggregate their resources (if you consider this is the case, please contact us for advice).
For example, if the applicant is in prison or works away from home, but neither of the above conditions applies, the resources of the spouse or partner must be included.
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 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 SLAB 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 published SLAB 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.
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.
Advice and Assistance
Solicitors are responsible for deciding if their clients are financially eligible for advice and assistance. In civil, children’s and criminal cases SLAB has the authority to withhold or to recover payments made to solicitors’ firms where, in granting advice and assistance, it is found that the financial tests have not been applied properly.
You should refer to this Keycard and the guidance in the Legal Assistance Handbooks about assessing disposable income and capital. Clients who are granted advice and assistance must be financially eligible.
Most clients should be able to give their solicitor 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.
We recommend that solicitors should see, wherever practicable, the following evidence -
where the client is employed - a recent wage slip or bank statement
where the client receives benefits - a letter of award, benefit book (in the few cases where it is paid this way) or a bank statement (which might simply be an ATM receipt showing the credit).
a bank statement and statement/passbook- and certificate for savings and/or investments held.
If you have not seen any evidence, you must explain in the advice and assistance application how you were satisfied that the client was financially eligible.
Keep a copy of this verification on file, so that it can be seen at peer review or at SLAB compliance inspection.
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 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.
There are some common situations where problems can arise in satisfying the requirement to verify financial circumstances. It is accepted that there are a number of situations where obtaining evidence of income and capital will be difficult, and this guidance sets out the information which needs to be provided to SLAB to help us ensure that reasonable and practicable steps have been taken to ensure that clients are financially eligible to receive assistance.
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.
The Advice and Assistance and Civil Legal Aid (Financial Conditions and Contributions) (Scotland) Amendment Regulations 2016 came into force on 1 April 2016 removing all client contributions from grants of Advice and Assistance made in connection with police interviews. A&A is therefore now available and free to all clients being interviewed in police stations. No financial tests now need to be applied, so the question of verification of financial circumstances no longer applies in these cases. Client contributions have only been removed from Advice and Assistance given at police stations to clients who are held under Section 15A. The financial tests and client contributions remain for clients in police stations who have already been charged.
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, eg number of letters, number of phone calls etc 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’.
Where the applicant has no income/capital or is supported by parents, family, friends etc., make sure you tell us about this. Always make sure that you tell us how a client is supported if they have no income and are not in custody or on remand.
If the applicant has a bank account, you should try to get a 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 applicant’s will have at least 1 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 in the very exceptional circumstances they do not have a bank account you should select “Other” from the capital verification options and then provide information on how you satisfied yourself that your client does not have any capital.
If you have obtained verification, you should advise us at the questions “I have seen the most recent evidence of the applicant's income” and “I have seen the most recent evidence of the applicant's capital” by selecting one of the options available e.g. bank statement, wage slip etc. The Other option should only be used where there is no appropriate option available. Quite often we see bank statements selected and then in the "Other" option something like “I have seen the client’s bank statement”. Doing this may result in a delay in the approval of the application as it needs to be separately checked by an officer at SLAB.
If you have obtained verification, you should advise us at the questions “I have seen the most recent evidence of the applicant's income” and “I have seen the most recent evidence of the applicant's capital or the client has signed the capital mandate form” by selecting one of the options available eg bank statement, wage slip etc. The Other option should only be used where there is not an option available. Quite often we see bank statements selected and then in the Other option something like “I have seen the client’s bank statement”. Doing this will results in a delay in the approval of the application as it needs to be separately checked by an officer at SLAB.
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, an income-related employment and support allowance or income- based jobseeker’s allowance).
Assessing eligibility on capital
Disposable capital – from 3rd April 2017
£1,716 maximum 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 levels of capital shown in the section below if the applicant is of pensionable age.
*This limit does not apply to advice and assistance given to suspects being questioned by the police at police stations where no financial tests now apply.
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
a dependent person who is wholly or substantially maintained
For the first such dependant
For the second such dependant
For each other such dependant
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
Weekly disposable income £11 - £22
Weekly disposable income £23 - £34
Weekly disposable income £35 - £46
Weekly disposable income £47 - £105
Assessing eligibility on income
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 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. 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. *This limit does not apply to advice and assistance given to suspects being questioned by the police at police stations where no financial tests now apply.
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.
If the client or their partner receives a passport benefit:
an income-related employment and support allowance
income-based jobseeker’s allowance
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.
SLAB will verify a client’s receipt of one of the passporting benefits named above with the Department of Work and Pensions. To assist us in doing so, we have provided some information about the information required.
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 – e.g. 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 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.
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. Do not include:
Working Tax Credit
Child Tax Credit
Child Maintenance Bonus
Child Support Maintenance (only if paid through the Child Support Agency)
Contribution-based Jobseeker’s Allowance
Contribution-based Employment and Support Allowance
Council Tax Benefit
Disability Living Allowance (DLA)
Incapacity Benefit (Incap)
Industrial Injuries Disablement Pension (IIDP)
Care (Invalid) Allowance
Personal Independence Payment
Armed Forces Independence Payment
Severe Disablement Allowance
Sums payable to holders of the Victoria Cross or George Cross
War Disablement Pension
War Widow’s/Widower’s Pension
Widowed Parent’s Allowance
State Retirement Pension
Adults with Incapacity – you must assess all income and capital for the adult concerned, not those of the person making the application. Unlike civil legal aid there are no circumstances where the application of the financial eligibility test has been waived.
Foster Care Allowance, Adoption Allowance and Kinship Carers Allowance - do not include any Foster Care Allowance the applicant receives in the calculation for disposable income. Do not deduct dependant’s allowances for capital and income for any of the foster children.
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 page 3 above).
You should deduct the following standard allowances against income for the maintenance of:
Partner living with the applicant
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
Deduct the actual maintenance paid for the last seven days, not the standard allowance, if:
This applies to criminal, children’s and civil advice and assistance, except diagnostic civil advice and assistance (for more information about this, read page 10) – see the next table for these contributions.
Disposable income range
Disposable Income not exceeding £105
Exceeding £105 but not exceeding £112 a week
Exceeding £112 but not exceeding £119 a week
Exceeding £119 but not exceeding £126 a week
Exceeding £126 but not exceeding £133 a week
Exceeding £133 but not exceeding £140 a week
Exceeding £140 but not exceeding £147 a week
Exceeding £147 but not exceeding £154 a week
Exceeding £154 but not exceeding £161 a week
Exceeding £161 but not exceeding £168 a week
Exceeding £168 but not exceeding £175 a week
Exceeding £175 but not exceeding £182 a week
Exceeding £182 but not exceeding £189 a week
Exceeding £189 but not exceeding £196 a week
Exceeding £196 but not exceeding £203 a week
Exceeding £203 but not exceeding £210 a week
Exceeding £210 but not exceeding £217 a week
Exceeding £217 but not exceeding £224 a week
Exceeding £224 but not exceeding £231 a week
Exceeding £231 but not exceeding £245 a week
Civil advice and assistance – diagnostic cases
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 £35.
Disposable income range
Exceeding £105 but not exceeding £134 a week
Exceeding £134 but not exceeding £163 a week
Exceeding £163 but not exceeding £193 a week
Exceeding £193 but not exceeding £222 a week
Exceeding £222 but not exceeding £245 a week
Initial limit of authorised expenditure
The standard initial limits of authorised expenditure in civil advice and assistance are:
Diagnostic - £35
Standard - £95
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
(a) 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
(b) it is likely (on the information provided to you) the applicant will qualify on financial grounds for civil legal aid, and
(c) it is reasonable in the circumstances of the case.
The £180 initial limit for ABWOR also applies in relation to a petition by a debtor for the sequestration of his estate (inclusive fees are prescribed for this work).
For criminal advice and assistance and criminal ABWOR cases, the initial limits of expenditure can be £35, £90, £185, £550, or £165, depending on the type of criminal advice and assistance or ABWOR being used:
£35 applies for general advice and assistance, where advice is being given prior to the service of a complaint or direct measure, or if the direct measure is accepted.
£90 applies for standard advice and assistance where advice is being given after the issue of a summary complaint or if the direct measure is being challenged.
£90 applies to advice given in connection with solemn criminal matters.
£185 applies for ABWOR cases on a block fee basis in JP court cases. This is the £150 block fee with the £25 fee for any diet where a social enquiry report (SER) is being considered, together with £10 for any outlays.
£550 applies for ABWOR cases on a block fee basis in the Sheriff Court and Stipendiary Magistrates Court cases. This is the £485 or £390 block fee (formely £515) with the £25 fee for any diet where a SER is being considered, together with an allowance for any outlays.
£165 applies for ABWOR cases for Parole Board proceedings, or if a second or subsequent diet has been ordered by the court for any other cases where ABWOR is available on a chargeable basis
£90 applies where it relates to ABWOR for any other summary criminal matter.
£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.
Clawback and regulation 16(3)
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:
Date of order or settlement prior to 1 December 2002
Date of order or settlement on or after 1 December 2002 (and not covered below)
Date of application for advice and assistance between:
06 April 2003 and 11 April 2004
12 April 2004 and 10 April 2005
11 April 2005 and 09 April 2006
10 April 2006 and 08 April 2007
09 April 2007 and 06 April 2008
07 April 2008 and 05 April 2009
06 April 2009 and 11 April 2010
12 April 2010 and 01 April 2011
On or after 1 April 2011
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 [regulation 16(3)(a)]; 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 chapter 9 of the Civil Legal Assistance Handbook.
Civil legal aid
If the client receives or is included in their partners claim for any of the following benefits, they will not have to pay a financial contribution towards their case if their application is successful:
Income based Employment and Support Allowance
Income based Jobseekers Allowance
SLAB will verify a client’s receipt of one of the passporting benefits named above with the Department of Work and Pensions. Our link with the DWP only checks the position with 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 partners details to be correct for the DWP check
To do work as a matter of special urgency under regulation 18, you have to complete the mandate which is designed to assist you to assess your client’s financial eligibility. The mandate can be found either in section D of the CIV/SOL Family or CIV/SOL Non Family applications or in the CIV/SU (Special Urgency) application. To complete the mandate you need to apply the current eligibility limits and allowances, which are:
The lower disposable income limit, on or below which a person will not have to pay a contribution from income
The upper disposable income limit, above which a person will be ineligible on income
Allowances for a partner and dependants
Partner living with the applicant
For any dependant 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
Where the applicant is seeking orders 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 need be undertaken. If the orders sought deal solely with the financial affairs of the Adult you must assess the disposable income and capital of the Adult concerned, not those of the person making the application.
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.
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 SLAB.
Calculating income contributions
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:
Contribution rates applied to income in that range
£3,522 - £11,540
£11,541 - £15,743
The lower capital eligibility limit, on or below which a person will not have to pay a contribution
The upper capital eligibility limit, above which SLAB may refuse a person legal aid if it considers they can afford to proceed without it
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
Unlike advice and assistance there are no statutory allowances from capital for partners or dependants.
You should refer to the Civil Legal Assistance Handbook for guidance 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.
Date of order or settlement prior to 1 December 2002
Date of order or settlement on or after 1 December 2002 (and not covered below)
Date of application for civil legal aid between:
6 April 2003 and 11 April 2004
12 April 2004 and 10 April 2005
11 April 2005 and 9 April 2006
10 April 2006 and 8 April 2007
9 April 2007 and 6 April 2008
7 April 2008 and 5 April 2009
6 April 2009 and 11 April 2010
12 April 2010 and 31 March 2011
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.
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