Legal Aid Online declarations

The current position is that you should sign all the declaration forms (from 12 December 2022)

 In all types of Legal Aid, Advice and Assistance, and ABWOR cases, you have two choices for completing and signing the declarations:

• use the paper declaration forms that are printable from our website, or
• print the LAOL declaration (a “printable summary” of the grant or application), and add your “wet” signature and the date of signing, even where this has been pre populated by the system.

The ‘Signature of the Solicitor’ is populated with the name of the nominated solicitor and the ‘Date Signed’ in A&A/ABWOR cases where this is printed off after the grant of A&A/ABWOR has been submitted to us, and in all other types of application.

Where an electronic signature using a stylus is acceptable (from 14 December 2023)

We consider that it is acceptable for a solicitor using an electronic version of a paper form to apply a signature using a stylus (for example, iPencil) where a solicitor is signing for his or her own interest.

However, you should save the form, and keep a copy of the PDF version in the file (whether paper or electronic).

We consider it good practice to keep a copy in this way. It is a reasonable approach to evidencing and protecting against iPads or laptops malfunctioning or being lost or stolen.

We expect this for peer review and compliance audits where checks are made for the signed declarations in the files being reviewed.

We intend that these measures will be in place on an interim basis while we consider our longer-term approach to authentication.

The next stage of this will involve looking at what alternatives to wet signatures would be acceptable.

We are looking at technical developments in the areas of electronic signatures, and how these we can use these for legal aid applications.

We will issue updated guidance on this as these matters develop.

The current position is that where clients are present and able, you must get them to sign the declaration forms (from 4 August 2023)

 With all of the formal Covid restrictions now removed, you must always get clients to sign the declaration form when you are seeing them face to face.

A signature on the declaration is important as it provides assurance to us that the applicant understands the existence of, and has accepted, certain terms and conditions.

An important element of this is that the applicant is also aware that there are consequences if they breach those terms and conditions, and their signature captures their acceptance of that.

In addition, the applicant’s signature confirms:

1. the information they have provided is accurate, (and is not misleading)
2. the applicant knows that we will make further enquiries with other agencies, such as the DWP and they consent to those agencies responding to us
3. the applicant understands the requirement to notify us about any changes in their financial circumstances

Where an electronic signature using a stylus is acceptable (from 14 December 2023)

We consider that it is acceptable for a client to “sign” an electronic version of a paper form by applying a signature using a stylus (for example, iPencil).

You should save the form, and keep a copy of the PDF version in the file (whether paper or electronic).

Please note that the stylus signatures need to provide sufficient authentication (i.e. the signature appended using the stylus should be recognisable as the applicant’s signature and not simply an e-squiggle).

We intend that these measures will be in place on an interim basis while we consider our longer-term approach to authentication.

The next stage of this will involve looking at what alternatives to wet signatures would be acceptable, with the focus on applicants, and where the consultations are not taking place face to face.

We are looking at technical developments in the areas of electronic signatures, and how these we can use these for legal aid applications.

We will issue updated guidance on this as these matters develop.

If the client is not present, you can still note this on the online system for the time being.

We recognise that this has been difficult over the past few years, and that the way in which solicitors consult with clients has changed since lockdown.

Advice and Assistance/ABWOR

On the Advice and Assistance/ABWOR system, you can use the reason for no signature obtained from the client on the online system - “Client not present and agrees with the declaration terms”.

Once you have confirmed with your client that they agree with the declaration terms you can use this reason for the time being where you are not seeing the client in person at the initial consultation. You should use - “Other” for all other reasons, with a full explanation given of the circumstances for us to consider.

Other Legal Aid Applications

It has not been possible to make a similar change to the online system for all other legal aid applications. In these cases, the system requires a date to be entered when the applicant signed the form. For the time being, the guidance we issued about this on 7 October 2020 still applies.

“In applications where this option is not given: you should indicate that you are signing on behalf of the client and give the date for this.”

Where it has not been possible to get the client to sign the declaration, the date entered here can also be the date of the remote consultation.  You can add a brief explanation about the circumstances, and confirm that the client agrees with the terms of the declaration. This can be done elsewhere in the application, for example in the “additional financial information box”.

Civil Financial Form 2

We expect that it should now be possible for clients to sign the Form 2, but where this is not possible, a full explanation should be provided.

In A&A/ABWOR cases, you can use the “Other” reason for genuine Covid cases, but you also need to let us know that the client agrees with the declaration.

If these cases are due to remote consultations, you should use the “Client not present and agrees with the declaration terms” option.

For all other legal aid applications, enter the date the client was seen in the field asking for the date the form was signed, and then add a brief explanation about the circumstances, and confirm that the client agrees with the terms of the declaration. This can be done elsewhere in the application, for example, in the “additional financial information box”.

For prison VC links and the Glasgow Sheriff Court to Barlinnie TV link, you can use the “Client not present and agrees with the declaration terms” reason for A&A/ABWOR cases.

For all other legal aid applications, enter the date the client was seen in the field asking for the date the form was signed, and then add a brief explanation about the circumstances, and confirm that the client agrees with the terms of the declaration. This can be done elsewhere in the application, for example, in the “additional financial information box”.

For Parole Board A&A and ABWOR forms when you are holding remote consultations, you can use the “Client not present…” reason.

We are aware that it can sometimes be difficult to get signatures from custody clients on the legal aid declaration forms.

This is not new and was happening in a number of areas before Covid, where you could not pass pens to a client under the screens in the court interview rooms.

In these situations we would ask you to try to get the signature after the initial consultation (on the same day) where this is practical and possible.

We do not insist this is done in the dock of the court, or through a GEOAmey officer, if this delays the proceedings, but if another opportunity arises on the day where you and the client see each other and it is possible to get a signature, then it should be done then.

If this is not possible, then it is acceptable for the declaration form to be unsigned.

In these situations, once you have confirmed that the client accepts the terms of the declaration, you can submit the application without the wet signature on the declaration form.

A&A/ABWOR cases

For A&A/ABWOR cases, you can use the category:

“Client unable to sign, and agrees with the declaration terms.”

All other legal aid applications

For all other legal aid applications, enter the date the client was seen in the field asking for the date the form was signed, and then add a brief explanation about the circumstances, and confirm that the client agrees with the terms of the declaration. This can be done elsewhere in the application, for example in the “additional financial information box”.

Signed declarations are also important for applications for transfers of legal aid.

They confirm that the client is seeking a change of solicitor, is giving us permission to check the circumstances in the request, and has agreed with the transfer reasons submitted.

All of this allows us to consider if a good reason has been advanced for the transfer.

You can also use the signed transfer declaration form to obtain the case papers from the first solicitor, if we have granted the transfer request.

Therefore, clients who are seeking to change their solicitor should always sign the Transfer Declaration forms (CIVTR/LAO, CHILDTR/LAO or CRIMTR/LAO), where this is possible.

If it is not possible to get these Transfer Declaration forms signed by the client, then you need to satisfy us that you have some other form of signed authority from the client confirming their agreement to the terms set out in the Transfer Declaration.

You can provide these details to us in the online system where it asks why the applicant has not signed the transfer, which is the Transfer Declaration form.

You should still sign the Transfer Declaration yourself, and send a copy of this to the first solicitor as required by the Solicitor’s declaration.

If your client states on either the AA/LAO/CIV, AA/LAO/CHLA or the AA/LAO/CRIM that they have no capital and subsequently signs the declaration, you can still use the signed declaration to verify that the applicant has no capital.

Please note that you cannot rely on a declaration verifying the capital position of the client if the client has not actually signed the form.

Indicating that the client is not present on the A&A system means that you were not able to get the declaration form signed at the initial consultation or meeting with the client.

You can only state that you are relying on the signed declaration if your client has, in fact, signed the declaration.

If verification of capital is not available at the initial meeting, you should try to get this later.

You can then update us on what evidence you have seen, or in cases where you have been unable to obtain verification, the steps you have taken to obtain this by submitting a verification update.

This has not changed since before lockdown.

The default position is for both the Solicitor and the Client to sign the declaration form, where full details, including any capital have been declared.

However, where your client has no capital, and you do not have a signed declaration, how you complete the online application will depend on whether she/he has a bank account.

Where there is a bank account, you should normally see a bank statement for the qualifying period to verify the capital position.

However, the following guidance should help you answer the questions and submit the application where you have not seen verification, and you do not have a signed declaration.

No capital, and no signed declaration, applicant has a bank account

I have seen the most recent evidence of the applicant’s capital – No

Awaiting Verification? Yes – submit the application and advise us later when verification is seen.

Awaiting Verification? No – add free text to explain why applicant cannot provide any verification.  For example, if the client is in custody or in hospital, or you can explain the steps you have taken to get verification.

No Capital, and no signed declaration, applicant has no bank account

I have seen the most recent evidence of the applicant’s capital – No

Awaiting Verification? No – add free text to explain that the applicant has no bank account.

During the Covid-19 restrictions, solicitors still had to be satisfied that clients were financially eligible, but we accepted that there might well be difficulties in seeing financial verification in all cases, where this was needed.

With the removal of all the formal Covid-19 restrictions, we now expect you to see verification in the vast majority of cases where this is required.

We accept that there may still be a small number of cases with vulnerable clients, or clients who may have recently tested positive for Covid, and it may be difficult for you to see verification in these cases.

In these cases, you should record in a file note that you have discussed the eligibility tests for A&A with your clients, and how you satisfied yourself that the clients are eligible.

Relying on the information provided verbally by the client is acceptable in these circumstances.

However, we expect these cases to be the exception, and verification is needed in all but exceptional circumstances.

When completing online applications for these Covid cases, in the sections where it asks if you have seen “the most recent evidence of the applicant’s capital and income”, you should:

• say ‘No’
• choose the ‘Other’ option
• give a full explanation of why you are unable to see the verification.