Will my client be liable to pay a contribution?

If an applicant is granted legal aid, they will come into one of three categories:

• those whose disposable income and disposable capital fall below the contribution threshold and are thus entitled to legal aid on a “nil” contribution (which may be revised upwards if their circumstances change);
• those whose disposable income or disposable capital is above the contribution threshold, but still within the upper limits for income or capital, and who will be asked to pay a contribution; and
• those whose disposable capital exceeds the upper limit, who may nonetheless be granted legal aid if the circumstances suggest that, in all the circumstances of the particular case he/she could not afford to proceed with the case to conclusion without legal aid.

In considering if legal aid should be made available in the last of these three situations regard will be had to the following factors:-

• That it would be reasonable to grant legal aid  in all the circumstances having had regard to the particular factors present and relevant to the issue of exercising our discretion in respect of financial assessment
• That clear evidence has been provided to show that the cost of the case is likely to exceed the amount of capital available to the applicant
• That funds currently held have been legally committed to another purpose, provided in making such a commitment the applicant is not in breach of Regulation 12 of the Civil Legal Aid (Scotland) Regulations 2002 which deals with deprivation of resources.
• That in the case where clear evidence has been provided that an asset is not immediately realisable. In this situation legal aid may be made available subject to a condition that the realisation of the asset must be reported to the Board at which time the Board may have regard to it’s value in seeking a contribution towards the cost of the case, even if this occurs after the case for which legal ad was granted has concluded.

This list is illustrative and the criteria listed above are not determinative of any particular case nor exhaustive of the factors to which the Board might have regard. Each case will be considered on its own facts and circumstances.

We will usually allow a contribution derived from income to be paid by instalments.  Normally, we will allow contributions of –

• up to £500 to be paid in 20 monthly instalments
• £501-£1,000 to be paid in 30 monthly instalments
• £1,001-£1,500 to be paid in 36 monthly instalments
• £1,501-£2,000 to be paid in 42 monthly instalments
• over £2,000 to be paid in 48 monthly instalments

If your client finds these instalment levels unaffordable, we may, depending on the individual circumstances, be prepared to review them and to allow them to pay the contribution over a longer period.

If the contribution is derived from disposable capital, it will normally have to be paid in a lump sum when legal aid starts.

When we grant legal aid subject to a contribution –

• we will consider any figure noted on the CIV/SOL/FAMILY OR CIV/SOL/NON-FAMILY as your estimate of the likely cost of the case and
• if the assessed contribution exceeds this figure, we will tell your client that they can opt to pay your estimate rather than the full assessed contribution. This would be subject to the proviso that if the estimated case cost they pay is less than the amount that is eventually claimed from the Fund, they will be liable for any shortfall up to a maximum of the assessed contribution.

We will carry out the means assessment in the same way.  We should still be told of any changes in your client’s financial circumstances and we will adjust contributions in the light of any such changes.

Contributions reduced in this way will still be payable in instalments, usually over 20 months.

If we agree to reduce the assessed contribution and later, for example, when you make a stage report, we consider your estimate was too low, we will ask your client to pay the higher contribution, or a revised estimate, whichever is less.  You should ensure that your client is aware that further requests for payment could arise.

With contributions generated from income, if your estimate is exceeded we will expect the applicant to revert to the instalment rate originally offered until either all your account has been met or the original contribution has been paid, whichever is lower.

Contributions generated from the applicant’s capital are always payable in one lump sum, but we can reduce any capital contribution to a lower estimate.  Your client must be prepared to set aside enough capital to pay the whole contribution assessed or all your account, whichever is the lower, if this proves necessary because your estimate is exceeded.  Our regulations do not make provision for us to reduce a person’s assessed contribution from capital unless there are exceptional circumstances.