Questions to ask your client when assessing their eligibility

Provision of advice and assistance to a child

How old is the child? If the child is under 12 and applying themselves, non-qualified staff should refer to you to decide if the child is able to  give you instructions.

Deprivation of resources

Has your client disposed of any resources, or converted any part of those resources into a different form of resource? Non-qualified staff should refer to you for a decision on whether these resources should be taken into account.

Married or cohabiting applicants

• Is the applicant married, in a civil partnership or cohabiting?

If your client is married or living with a partner as if married, including same sex couples, the resources of the couple must be aggregated unless:

• There is a contrary interest between the parties in the case for which legal aid is sought
• Your client and their spouse or partner live separate and apart
• There is something about the case that would make it unfair or impractical to treat the partner’s resources as part of your client’s resources

Contrary interest

It must be shown that the partner is seeking a different outcome from your client if resources are to be disregarded. This is not the same as where a partner may have a different interest in the proceedings, for example, where the partner may be called upon to give evidence that is detrimental to themselves or your client’s case but still seeks the same outcome.

Couple living separate

The regulation also allows that where your client and partner are no longer living together and have separated then aggregation need not apply. In considering this, it must be shown that not only is there a physical separation but also that the relationship is at an end.

Some periods of physical separation take place without ending a relationship. For example:

• Due to the requirements of your client’s or partner’s military service or job
• Arrangements arrived at to facilitate residence or contact with children
• The need to maintain separate households as a result of accommodation difficulties
• Your client or partner is in prison

The principal factors that we will take into account in deciding if the parties live together and do so as if spouses, cohabitees or civil partners are:

• Evidence of the extent of co-habitation.
• Duration of co-habitation.
• Degree of continuity of co-habitation.
• Reason for any interruption of co-habitation.
• Degree of mutual support: financial, emotional and otherwise.
• Acknowledgement by the parties or others of the relationship.
• Whether there is a second home and, if there is, its purpose and location.
• What is the intentionality behind any degree of living separate and apart?

 Applicant with more than one dwelling house

Does your client have an interest in a dwelling house other than the main one in which they live?

If so, how much money could they get by borrowing money on the security of the second house?  Non-qualified staff should refer to you to decide how much capital to include in the assessment.

Your client may not be able to answer all these questions at the first meeting.  They  should be asked to send in any appropriate documents to you, to help you confirm their position.  Advice and assistance cannot be granted until you are satisfied your client is eligible.