Appeal applications where financial eligibility test to be applied and information on assessing a client’s disposable income

This section explains:

• The circumstances in which we need to apply a financial eligibility test.
• How the test is applied in an application for criminal legal aid for an appeal.
• The different types of income we have to assess.
• The outgoings taken into account.
• How we calculate disposable income.
• The documentation required.

We suggest that at the earliest possible stage in a case where there will be a financial test, because legal aid was not previously in place, that you obtain the client’s financial information and signature on the declaration in anticipation of submitting the full appeal application if the case passes the sift process.

We have to decide whether a client is financially eligible where they did not have legal aid for the case at first instance. For example if:

• They were not represented.
• They were receiving ABWOR.
• They were represented by the duty solicitor.
• They paid for representation privately.

Undue hardship test

The statutory test is whether the client’s financial circumstances are such that the expenses of the appeal cannot be met without undue hardship to them or their dependants. This test will be applied in the same way as for initial proceedings, except that we will have regard to the costs of the appeal instead of the defence.

Application by “authorised person” – section 25AA

In an application by an authorised person, their means are normally taken into account.

However, where the authorised person is the deceased’s executor, only the deceased’s estate is taken into account and the beneficiaries of that estate are treated as the dependants for the purposes of the undue hardship test.

Leave to appeal required

When leave to appeal is required, the expenses to be taken into account are those of the application for leave to appeal.

If leave is obtained and legal aid is granted, we may carry out a further hardship test before the date of the appeal hearing. We will only do this if there has been a change in the client’s financial circumstances [section 25 of the Legal Aid (Scotland) Act 1986]. The legal aid certificate will include a special condition that:

• Your client must tell us about any improvement in their financial circumstances .
• No further work may be carried out until we are satisfied that the client is still financially eligible.

The following sections deal with the information we require and the application of the financial test in the context of different financial circumstances.

Complete all parts of the online form as appropriate.

Providing all the information requested on the online application should enable us to consider the application without delay and avoid the need for us to continue the application for further information or documentation.

We do not normally require documentary evidence that your client is receiving state benefits.

However, with all clients we may take steps to verify the financial information they have given. If we find they have wilfully given us false information, or not made a full disclosure, we will consider reporting the circumstances to the procurator fiscal for prosecution.

Before we can make legal aid available, clients must provide proof of their income and outgoings.

Usually, the easiest way to do this is to provide a recent copy bank statement, marked to show income and outgoings. If their income is not paid into a bank account, we can accept a recent copy wage slip or a letter from an employer.

If the client has more than one bank account, we will require a recent copy statement for all accounts.

Self-employed clients

If a client is self-employed, we can accept:

• The most recent self-assessment tax return.
• A recent copy bank statement if this shows their weekly drawings.
• A letter from the client’s accountant confirming their weekly drawings, if the above documents are not available.

The best way to provide proof of payment of outgoings is usually to provide a recent copy bank statement. However, if any of the outgoings do not appear on the bank statement alternative proof of payment is required.

If the applicant has more than one bank account, we will require a recent copy statement for all accounts.

A client will automatically qualify on income if they are in receipt of one of the following “passport benefits”:

• Income Support
• Income related Employment and Support Allowance
• Income based Job Seekers Allowance
• Universal Credit

We can check receipt of these benefits using our automatic DWP link. If the link is able to confirm receipt of a passport benefit, we will not require any other evidence of this.

Benefit in partner’s name

If the passport benefit claim is in the name of the partner, our automatic DWP link can check this but we will require the partner’s:

• Forename
• Surname
• Date of birth
• NI number

If our link is unable to confirm receipt of a passport benefit then we will require some form of proof of payment such as a recent copy bank statement or a recent copy award letter from the DWP.

Some non-passport benefits are dis-regarded and, therefore, are not included as income in our calculations. These include:

• 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’s Allowance Supplement under section 81 of the Social Security (Scotland) Act 2018
• Care Experienced Student Bursary paid under regulation 3(1) of the Student Support (Scotland) Regulations 2022
• 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
• Grenfell Tower compensation scheme payments
• Human trafficking or exploitation victim payments (payments made in terms of s.9 of the Human Trafficking and Exploitation (Scotland) Act 2015, regulations made under s.10 of that Act or by way of support provided under a Modern Slavery Victim Care Contract)
• Infected Blood Compensation Scheme payments (UK scheme)
• Jobseeker’s Allowance – contribution-based
• Miscarriage of justice payments
• Pension age disability payment and short term-assistance given in accordance with the Disability Assistance for Older People (Scotland) Regulations 2024
• 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
  • 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)
  • Widowed parent’s allowance
• State Pension Credit under the State Pension Credit 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)

Our automatic DWP link is not be able to check for receipt of these benefit payments, so proof of receipt of the benefit is required. This could be a recent copy bank statement or an award letter from the DWP.

We consider the following items as income:

• Pay or sick pay from work (including overtime, commission, bonuses, but after deducting income tax, national insurance, student loan, CSA payments or other such deductions.
• Drawings/net profit if self-employed.
• Private pension.
• Any other state benefits.
• Student grant or bursary.
• Maintenance payments received.
• Money from all other sources.

Where the client lives with a spouse/partner, you do not need to declare partner’s income if:

• They have a contrary interest in the case (complainer, co-accused or a crown witness).
• Their net pay is less than the current upper income limit of £11,540 per annum or £222 per week.

We consider the following as outgoings:

• Rent or board and lodgings
• Mortgage (including any endowment or life insurance policies linked to the mortgage)
• Council tax/water charges
• Regular loan re-payments
• Minimum monthly credit card/store card payments
• Maintenance payments
• Court fines
• Car insurance and car tax payments
• Other reasonable outgoings

For the outgoings, we will consider the full amount of the outgoings if the spouse or partner has weekly income below £222. Where the spouse or partner is in receipt of weekly income above £222, we will make an allowance for half of any declared outgoings.

Where the client lives with a spouse/partner and or any dependant person (adult other than partner) or child, a standard allowance is given for each dependant at the rates given in the current advice and assistance Keycard.

The income figure remaining, after any allowances and outgoings have been deducted is the client’s disposable income.

Client’s disposable income below limit

If the remaining figure is less than the current weekly income limit of £222, then the client qualifies on disposable income.

Client’s disposable income above limit

If the figure exceeds £222, we look at the nature of the appeal involved before we can determine whether it would cause undue hardship for your client to pay for their own legal costs.

In considering the undue hardship test, we look at factors including:

• The likelihood that expert evidence would be required.
• Legal complexities involved.
• Any other aspects of the case likely to lead to a need for significant preparation time.

If the client has no income, you must provide an explanation about how they are financially supported. If the client has a bank account, a recent copy statement will be required in support of their financial position.

A grant of legal aid is made on condition that the applicant informs us of any material changes in their financial circumstances during the lifetime of the case. We define a ‘material change’ as being an increase in annual income and/or capital by more than £750.

We can also apply an additional condition where an applicant is unable to provide the usual financial verification required prior to a grant being made, because of health reasons, or where legal aid is required to allow an urgent case to progress.  The condition is that the applicant provides financial verification to demonstrate their eligibility at the date of grant as soon as it becomes available, and in any event within the next three months.

In appeals to the Supreme Court, we will apply an additional condition in criminal appeals seeking special permission to appeal to the United Kingdom Supreme Court, which limits the work to be undertaken up until the point where permission to appeal is granted (in which case a full legal aid grant in put in place) or refused (in which case the limited grant is terminated.)