Legal aid FAQs - financial eligibility in advice and assistance

Who is responsible for determining whether the applicant is financially eligible for advice and assistance?

Regulation 33 of the Civil Legal Services (General) Regulations (Northern Ireland) 2015 (“the General Regulations”) states that the solicitor is responsible for determining the assisted party’s financial eligibility for assistance under the Advice and Assistance Scheme before any advice and assistance is provided.

Where is the financial eligibility test for advice and assistance set out in the Regulations?

Chapter 3 (Regulations 23-32) of The Civil Legal Services (Financial) Regulations (Northern Ireland) 2015 (“the Financial Regulations”) is used to establish if an applicant is financially eligible to receive advice and assistance.

What is the financial assessment period for advice and assistance?

Financial eligibility is based on an applicant’s disposable income and capital during the seven days up to and including the date of initial advice, as set out in Regulation 12(2) of the Financial Regulations.

When does the assessment period start?

The assessment period starts seven days before the date the applicant signs the Declaration (which should also be the date of the initial advice).

I don’t have any documents to prove my client’s income/capital. Can I still offer the advice and assistance and obtain the documents at a later time?

Regulation 33(2) is clear that a supplier “shall not give advice and assistance…until the supplier has determined the matters referred to in paragraph 1”. Paragraph 1 being the requirement to assess disposable income and capital of the applicant and/or any person whose resources are to be aggregated. 

Therefore, unless and until, the applicant has provided the documentation required to satisfy the supplier of their total income and/or capital, advice and assistance should not be given. 

The Agency appreciates that there may be situations where an applicant cannot reasonably provide financial proofs however; if the supplier proceeds to give advice without any proofs they do so at their own risk.

In situations where formal proofs cannot be provided at the date of initial advice, the Agency are willing to be pragmatic in relation to what can be accepted to establish income/capital e.g. screenshots of online banking or mini statements from ATMs. However, the Agency would also expect that full formal proofs would be uploaded as soon as they become available and, in any event, before a request for payment is made.

What is the financial test for advice and assistance?

In order to qualify financially for advice and assistance the applicant’s capital and income must be within the current financial limits set out in Regulation 6 of the Financial Regulations.

What if the applicant has a partner?

If the applicant has a partner (a partner being someone with whom an individual normally resides as a couple including a person of the same sex), the partner's savings and income will be included unless:

• they live separately and apart
• there is a conflict of interest between the applicant and their partner in relation to the matter (if, for instance, divorce matters)
• it is inequitable or impractical to aggregate their means.

Who is responsible for collecting an assessed contribution from the applicant?

The solicitor should collect any contribution payable by the applicant. See section on contributions below.

What if the applicant is in receipt of a passporting benefit?

If the applicant is in receipt to of a passporting benefit (Income Support, Guaranteed Pension Credit, Universal Credit, Job Seekers Allowance (Income Based) or Employment Support Allowance (Income Based)) then the Agency will be able to confirm this using appropriate Government systems which we have access to. If you are provided with any documentation confirming benefit entitlement this can be uploaded as a supporting document on LAMS.

However, it is vital that the solicitor selects the appropriate benefit from the drop down list on LAMS when making the application as, if an incorrect benefit is selected and found not to be in payment, the application will be withdrawn. 

Under Regulation 5(2) and 6(2) of the Financial Regulations, even if the applicant is in receipt of a passporting benefit, they must also be within the capital. Solicitors should ensure that they confirm the applicant’s capital and provide the appropriate vouching documentation for same with the application.

What if the applicant does not give full and candid information in relation to their financial eligibility?

The solicitor must be satisfied that they have been provided with a complete picture of the applicant’s finances.

Applicants who have misrepresented their position can and will be prosecuted. They will also be liable to repay any costs paid by the Legal Services Agency on their behalf. If the solicitor was “satisfied” recklessly or on the basis of inadequate information then the client may also be able to shift that liability to the solicitor.

An assessor can also refer any claim to the Counter Fraud Unit (CFU) within LSANI if fraudulent activity is suspected.

After the solicitor’s request for payment has been paid, the Standards Assurance Unit of the Department for Communities may contact the applicant and request that they verify their financial eligibility as at the date of the application. Guidance in relation to this process is available on the LSANI website (LSANI Guidance – applicant fraud and error).

What financial proofs will I need to satisfy myself as to the applicant’s financial eligibility?

It is insufficient for a solicitor to accept, without supporting evidence, a statement from a client in relation to either income, capital or receipt of a non passporting benefit. A solicitor must be “satisfied” as to a client’s financial eligibility before making the application on LAMS. 

The most suitable forms of evidence for income are payslips and Form P60. 

The most suitable forms of evidence for capital are bank/credit union statements.

A copy of the Court Order is the most suitable form of evidence to justify deductions in respect of maintenance.

In situations where the applicant is unable to reasonably produce formal proofs at the date of advice, the Agency will adopt a pragmatic approach and will accept screen shots, mini statements or other evidence which confirms income/capital.

See the ‘supporting documentation triage table’ below for further guidance.

What if the applicant’s financial position changes after they have been determined to be eligible for advice and assistance?

There is no obligation to report any changes in financial circumstances once an applicant has been deemed eligible for advice and assistance. This is because the assessment period is set at the seven days up to and including the date of initial advice and any subsequent changes are not relevant.

What is the capital test and what needs to be taken into account or disregarded?

The solicitor should add up the applicant’s savings/capital - this includes savings, ISA’s, shares, insurance policies and premium bonds.

In determining disposable capital, the solicitor should disregard:

• • the value of the main or only dwelling house in which the applicant resides
  • the value of the household furniture and effects, articles or personal clothing and tools and implements of the client’s trade
  • the subject matter of the advice and assistance.

Capital must be assessed for advice and assistance even if the applicant is in receipt of a passport benefit and those proofs uploaded with the LAMS application. 

Below are the maximum disposable capital limits to be applied when assessing financial eligibility for advice and assistance:

• £1,000 if the applicant has no dependants
• £1,335 if applicant has one dependant
• £1,535 if applicant has two dependants
• £1,635 if applicant has three dependants
• £100 for each extra dependant

A client whose disposable capital exceeds the appropriate amount set out above is not eligible for advice and assistance (even if the client is in receipt of a passport benefit).

What is the income test and what needs to be taken into account and disregarded?

Income is defined as the total income from all sources, which the applicant received or became entitled to during or in respect of the seven days up to and including the date of the application. 

It should be noted that Child Benefit is counted as income. 

When income is clearly not typical of that usually received during one week, discretion may be exercised and the applicant’s disposable income determined on the basis of the average weekly income received over a longer period however, a full explanation of the nature of the atypical income will be required from the applicant. 

If the applicant is not on a passporting benefit, the solicitor should take their client’s actual income (plus their partner's income where relevant) for the seven days (up to and including the date of initial advice which should also be the date the applicant signs the Declaration) and deduct from it:

1. Income Tax and National Insurance contributions
2. £41.75 in respect of either partner (a partner being anyone with whom the client normally resides as a couple, including a person of the same sex) whether or not their means are aggregated. Where they are separated or divorced, the allowance will be the actual maintenance paid by the applicant in respect of the previous seven days.
3. £66.90 in the case of each dependent child or dependent relative aged under 20 (from birth to 19 years and 364 days). See Regulations 27 and 28 of the Financial Regulations. No deduction can be made in respect of a foster child. 

For a full list of financial resources that can be disregarded from the applicant’s income refer to Regulation 25 of the Financial Regulations.

When determining disposable income, the following should be disregarded:

• Disability Living Allowance
• Attendance Allowance
• Payments made out of the Social Fund
• Payments by way of Carer’s Allowance
• Direct payments made under the Carers and Direct Payments Act
• Any extra-statutory job grant paid by the Department for Communities (DfC)
• Severe Disablement Allowance
• Exceptionally Severe Disablement Allowance
• Any Pensions paid under the Naval, Military and Air Forces Etc. (Disablement and Death) Service Pensions Order 2006
• Any Armed Forces Independence Payment made under the Armed Forced and Reserve Forces (Compensation Scheme) Order 2011
• Any financial support paid under any agreement for the care of a foster child (to the extent that is exceeds the current dependant deduction)
• Any payment made out of the Independent Living Fund (2006)
• Any part of a client’s weekly income if it is subject matter of any claim upon which the advice and assistance is being sought.

What is left after making these deductions is disposable income. To qualify for advice and assistance disposable income must be less than £234.00 per week.

What if the applicant is in receipt of Personal Independence Payments (PIP) or Welfare Supplementary payments?

Circular LSA 04/17 provided guidance on treatment of Personal Independence Payment (PIP) and Welfare Supplementary Payments when assessing financial eligibility to receive advice and assistance. It states that when determining an applicant’s entitlement (for advice and assistance), practitioners should:

• Disregard under Regulation 49 of the Financial Regulations [Disregard of certain welfare and other payments] any discretionary support payments made under The Discretionary Support Regulations (Northern Ireland) 2016
• Disregard under Regulation 25 of the Financial Regulations [Disregards from income – certain welfare allowances, payments etc.] any PIP mitigation payments made under:
  • The Welfare Supplementary Payment (Loss of Disability Living Allowance) Regulations (Northern Ireland) 2016
  • The Welfare Supplementary Payment (Loss of Disability – Related Premiums) Regulations (Northern Ireland) 2016
  • The Welfare Supplementary Payment (Loss of Carer Payments) Regulations (Northern Ireland) 2016
  • The Personal Independence Payment (Transitional Provisions) Regulations (Northern Ireland) 2016

What financial proofs need to be uploaded with the application?

Documentary evidence supporting the solicitor’s assessment of their applicant’s financial eligibility must be submitted to the Agency along with the application. This evidence must cover the assessment period i.e. the seven days up to and including the date of initial advice/date of declaration. Examples of proof include:

• Wage Slip (if employed)
• Business/trading accounts (if self-employed)
• Student Finance; proof of loan/grant
• Letter from Department for Communities confirming applicant’s benefit entitlement (for non passporting benefits)
• Current benefit/tax credits award letter
• Bank statement

Note that bank statements are not acceptable proof of Contribution Based Employment Support Allowance, Contribution Based Job Seekers Allowance or Pension Credit as it is unclear from a bank statement if the applicant is in receipt of Contribution Based or Income Related ESA/JSA or the Guaranteed element of Pension Credit. 

In situations where the applicant cannot reasonably produce formal proofs, the Agency will adopt a pragmatic approach and will accept other forms of proof which confirm eligibility.

What if the applicant is a child?

When an application is received where the client is a child, the means test is based on the parents/guardians resources. 

Regulation 2(b) of the Financial Regulations states “child” means an individual under the age of 18.

Regulation 17(4) of the Financial Regulations states:

“(4) Where the client is a child the resources of a parent, guardian or any other person who is responsible for maintaining the child, or who usually contributes substantially to the child’s maintenance, shall be treated as the child’s resources, unless having regard to all the circumstances, including the age and resources of the child and any conflict of interest, it appears inequitable to do so.”

If you are seeking to apply a Regulation 17(4) disregard then the Agency will require full details of the parent/guardians resources and your detailed representations as to why Regulation 17(4) should be applied. 

A 16-18 year old, who has left education and is in receipt of benefits in their own right, would not be treated as a minor and would be means tested based on their own resources. 

What is the position with student loans?

Both student loans and grants are treated as income when establishing financial eligibility for advice and assistance. 

Student loans are available for university or college students and the student is free to decide whether to take out such a loan. Most student loans are repaid when the student is in employment and as there is no current liability for the debt it is therefore classed as income. 

Usually three instalments of a loan/grant is received by the student over the academic year; one payment per term. Therefore, when calculating student finance, an average should be taken over term time which is 39 weeks. 

What if the applicant is in receipt of benefits which are paid from outside the jurisdiction?

On occasion, benefits may be paid by a benefit office outside the jurisdiction, for example, in the Republic of Ireland. In this instance, such benefits are treated as income in the usual way.

What if the applicant is seeking advice on Immigration/Political Asylum cases – how should their financial eligibility be established and what proofs are needed?

An applicant seeking advice and assistance in immigration and/or political asylum matters may be in receipt of National Asylum Support Service (NASS). If an asylum seeker meets specific Home Office destitution criteria, they can avail of NASS which provides support in terms of accommodation, subsistence along with healthcare and education for children.                    

To deem a person destitute, the Home Office determines that the person does not have adequate accommodation or enough money to meet living expenses for themselves and any dependants now or within the next 14 days.

Section 95 support can take the form of subsistence only (i.e. cash only support) if the asylum seeker has somewhere to stay pending their asylum claim. The level of cash support provided is a fixed rate which is significantly lower than income support levels. It is currently £37.80 per week per person.

Some people whose asylum applications have been refused are detained and removed from the country, but others may not be. In such cases, they may be eligible for short-term support. In such cases, the asylum seeker is not eligible to receive Section 95 support but may be eligible for Section 4 support. This is short-term support provision of emergency accommodation and non-cash allowance.

Section 96 support is an additional payment option for asylum seekers who experience ‘exceptional’ circumstances or need and are currently in receipt of Section 95 support. To qualify for Section 96 support, applicants must evidence that their circumstances or needs are indeed exceptional, and that additional costs incur because that need cannot be met under their current Section 95 payment. Needs which can be met under Section 96 are those for accommodation or for ‘essential living’ only.

Additional support is available for all women who are receiving asylum support and who are pregnant or have children less than three years of age are entitled to additional payments.

• An additional £5 a week is available for babies under the age of one.
• Pregnant women and children between one and three years are entitled to an additional £3 per week on top of their basic asylum support cash payment.

If an applicant is in receipt of NASS, the Agency treats this as income and requires documentary evidence proving receipt of same during the seven days up to and including the date of initial advice. 

Previously, Bryson House provided status reports of an individual’s asylum support however, this is no longer possible. The solicitor should therefore satisfy themselves as to the level of the support being received and confirm same to the Agency by letter which should be uploaded as a supporting document with the application. 

What if the applicant has no capital or income and cannot produce evidence of this?

If an applicant informs their solicitor that they are not in receipt of any income and/or capital, the solicitor should provide details on how their client is surviving financially in the application in LAMS, for example:

• Client is destitute
• Client is relying on family/friends for accommodation and food
• Client has recently separated from spouse and has applied for benefits (in their own right) but awaits decision
• Client is in prison (the prison must be noted as the applicant’s address in this instance to allow for randomised checking)
• Client is seeking asylum and currently relying on charity.

In these instances, the onus is on the solicitor to be satisfied that the information provided is accurate and complete. The applicant also declares that the information is correct and understands that any dishonesty (in providing this information) may lead to the withdrawal of advice and assistance leaving the applicant liable for any legal fees incurred throughout the duration of the matter.

How are contributions calculated?

A contribution is payable when an applicant’s disposable income is between £107 and £234 per week. An applicant will not have to pay anything if their disposable income is less than £107 per week, however, an applicant will not qualify financially for advice and assistance should their disposable income exceed £234 per week.

The balance between the contribution paid and the cost of the solicitor’s claim is paid by the Legal Aid Fund (unless money or property has been recovered or preserved on behalf of the applicant).

Regulations 59 and 60 within Part 3 Financial Regulations apply in relation to the contribution payable by a client for advice and assistance. This sets out the amount of contribution payable depending on the applicant’s assessed weekly disposable income:

Regulation 60 of the Financial Regulations states that the solicitor should collect any contribution payable from their client. 

Where the solicitor assesses and collects a contribution from the applicant which is then redetermined by the Agency, it will be the responsibility of the solicitor to either refund the difference or collect the further contribution to/from the applicant.

Also, if the total contribution exceeds the amount payable from the Legal Aid Fund at the conclusion of the case the solicitor should deal directly with the applicant, The solicitor should upload a Report on Case on LAMS indicating that there will be no claim on the fund to conclude the advice and assistance case and allow it to be closed on the system. 

I have given advice and assistance to my client but I now need to make a representation lower application so that we can proceed to court. Do I need to reassess my client’s financial eligibility for representation lower?

No. Where your client has been assessed as being eligible for advice and assistance this financial assessment will carry through to their application for representation lower. In order to link the cases on LAMS you should submit a new application for legal aid and choose representation lower as the level of service. You will then be asked whether the application is based on an existing advice and assistance application and when you choose “Yes”, you will be prompted to select the appropriate advice and assistance application to link the new representation lower application to.

Supporting documentation triage table