Introduction to legal aid

Legal aid allows people who would not otherwise be able to afford it to get help for their legal problems. We can provide funding to help people who qualify to get legal advice and “representation” (where a solicitor puts their case in court).

• Civil legal assistance helps people to get legal advice and “representation", in civil cases
  
• Criminal legal assistance helps people who have been charged with a criminal offence to get legal advice and "representation."

Civil legal assistance includes advice and assistance and civil legal aid. Similarly, criminal legal assistance is advice and assistance and criminal legal aid.

Advice and assistance helps to pay for advice from a solicitor on any matter of Scots law. (For example, to try to settle a dispute without going to court.) In some special circumstances, it may also cover their solicitor representing them in court – this is called ABWOR – “assistance by way of representation”. Depending on the applicant's financial circumstances, they may have to pay towards their advice and assistance.

Advice and assistance covers a wide range of matters, so long as they are matters of Scots law and the applicant qualifies financially. This might include advice on divorce, contact with children, possible personal injury claims, welfare rights, immigration or asylum issues.

The applicant's solicitor will decide whether they meet the financial eligibility limits for advice and assistance set by Parliament.

Civil legal aid will provide funding for a solicitor to put someone's case in court. It covers the preparation work, as well as the hearing itself, and can provide funding for advocates, experts etc. (Most cases begin with advice and assistance, and civil legal aid may be the next step if necessary.) Here are some examples of issues that civil legal aid might be able to help with:

• divorce and other matters affecting family and children
  
• actions for compensation for injuries resulting from an accident, or medical negligence
  
• housing matters such as rent or mortgage arrears, repairs, eviction
  
• debt
  
• immigration, nationality, or asylum.

The opponent of someone who has applied for civil legal aid has the right to object to the application for, or grant of, civil legal aid.

The Board assesses all applications in the same way and we must follow rules set down in law by Parliament. To be granted civil legal aid, all of the following tests must be met by the applicant:

• they must qualify financially
• they must have a legal basis for their case, sometimes called probable cause
• it is reasonable in the particular circumstances of the case that they should receive legal aid
• financial help is not available from someone else – like a trade union, insurance company or professional body.
  

Criminal legal aid pays for someone to get legal advice and representation in criminal court proceedings. In some circumstances, criminal legal aid may automatically be available immediately and without having to make an application. This may be through the duty solicitor.

The cost of legal assistance is met from public funds through the Scottish Legal Aid Board, apart from:

• Under criminal legal assistance any amount the applicant may pay in contributions under advice and assistance.
  
• For civil legal assistance, it may be free or the applicant may have to pay a contribution towards the cost of their case. Also they might have to pay from money or property that they win or keep as a result of their case.

The Scottish Legal Aid Board was set up in 1987 by the Legal Aid (Scotland) Act 1986 to manage legal aid in Scotland. It is a non-departmental public body responsible to the Scottish Executive.

Scottish Executive Ministers are responsible for overall legal aid policy and the Scottish Parliament deals with legislation affecting legal aid.

The criteria for granting legal aid and advice and assistance are set down in legislation, and fee rates are set by the Scottish Parliament.

The Board aims to make consistent, timely and sound decisions on granting applications, and in assessing and paying solicitors’ and advocates’ accounts.

The Board's role is:

• Advice and assistance - solicitors make initial grants and the Board decides on increases in authorised expenditure.
  
  
• Civil legal aid - the Board makes decisions on all aspects, including applications and sanction for counsel or experts, or to incur unusual expenditure.

• Criminal legal aid - the Board makes decisions on all aspects, except in solemn cases (more serious cases such as murder or serious assault) where the judge or sheriff will make the initial decision on whether to grant legal aid.

Children's legal aid
If you are a child, Legal aid for children (leaflet in pdf format) explains the types of legal aid available

To find our more, use these links for further steps to help you get legal help.