Assessing disposable income in solemn proceedings

This section explains the different types of income, outgoings, how to calculate disposable income and documentation required.

Your 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 the automatic DWP link. If the link is able to confirm receipt of a passport benefit, we will not require any other documentation in relation to the benefit claim.

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

• Forename
• Surname
• Date of birth
• NI number

If the link is unable to confirm the partner’s passport benefit claim we will require other 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 are therefore 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)

The 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, etc)
• 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 your client lives with a spouse/partner, you do not need to declare their income if the spouse or partner has a contrary interest in the case.

A contrary interest in the proceedings is if the spouse/partner is:

• The complainer
• A co-accused
• A crown witness

You also do not need to declare the spouse/partner’s income if 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.

Disregarding benefits from income threshold

Some clients receive a combination of state benefits and these can exceed the weekly disposable income threshold. If your client’s personal circumstances mean that they incur additional household expenses for themselves, you should tell us about these as we may take these into account.

Where your client receives a non-passported benefit as a result of the disability of a family member, this is disregarded from our assessment.

Where your client lives with a spouse/partner 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.

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

Remaining figure less than £222

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

Remaining figure more than £222

If the figure exceeds £222, then the amount over £222 is multiplied by 26, and compared to the median cost of the case.

The median case costs we use depends on:

• Whether the case is to proceed in the High Court or the Sheriff court
• The case category
• Whether the case is going to trial or not

For instance, if the case can only proceed in the High court such as a charge of Murder, Culpable Homicide or Rape, we will use the High court non-trial median case cost unless or until we are advised the case is going to trial.

We also look at the nature of the case involved before we can determine whether it would cause undue hardship to your client to pay for their own legal costs. In considering the undue hardship test, we look at factors, such as:

• The number of witnesses involved
• 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 any of these factors are present, your client may still be eligible for legal aid.

Solemn Criminal

Average (Median) case costs table – Non Trial 30 March to 31 December 2023 

Average (Median) case costs table – Trial 30 March to 31 December 2023 

If we are advised that a case will be going to trial, then the following higher median costs can be used for the calculation.

If your client has no income you must provide an explanation as to how they are currently financially supported. If your client has a bank account, a recent copy statement will be required to support of their financial declaration.

Before we can make legal aid available, your client must provide proof of their income and outgoings. The easiest way to do this is to provide a recent copy bank statement, marked to show where the income and outgoings are. 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 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 their accountant confirming their weekly drawings

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

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.