You have to complete and retain on file the advice and assistance declaration form when advice and assistance (including ABWOR) is being given under the Children’s Hearings (Scotland) Act 2011.
This declaration form (previously referred to as ‘the Mandate’):
- Captures of your client’s personal details. You need these to grant advice and assistance and to intimate such a grant to us and thereafter make any increase in authorised expenditure (including ABWOR) requests to us
- Gives your client’s permission to make the application and authority to us to make any necessary financial enquiries to verify their stated financial position.
- Gives your client’s permission for their details to be disclosed for the purposes of quality assurance checking.
The declaration form will enable you to record key information and capture your client's and your own signatures. All declaration forms must therefore be:
- Signed and dated by your client – see guidance below.
- Signed and dated by the nominated solicitor.
- Completed in full, including details of the type of ABWOR granted or sought, where applicable.
You do not have to send us a copy of the declaration form but, as part of our audits and quality checks, we will randomly verify that they have been completed and signed appropriately.
The declaration form must be completed and present in all files where your clients are seeking legal assistance from public funds. If this is not done or the form is incomplete you may not be paid for any work you carry out.
Where the applicant is a child:
- A grant of advice and assistance (including ABWOR) for a child can only be made when:
- You consider that the child is old enough to directly instruct you to act as their solicitor.
- They want you to provide them with legal advice and assistance.
- The child must sign the declaration form if they are making the application.
- A safeguarder or other representative (social worker, unit manager etc) can only sign the declaration form when advice and assistance is being applied for on behalf of a child by a relevant person.
- You can never sign a declaration form on behalf of the child unless you are acting in a representative or fiduciary capacity, such as a Safeguarder. It is important to note that if you are acting as a solicitor, on the direct instructions of the child, you are not acting in a “representative or fiduciary capacity”. You are acting directly as that child’s solicitor and therefore require the child’s signature on the declaration form itself.
- If the child cannot write, leave the signature blank and you should note in the file that the contents of the declaration form have been fully explained to the child.
- The declaration form should only be signed by the child once it has been fully completed. When the child instructing the nominated solicitor to act on their behalf is not present when the declaration form is being completed it should be then sent to the child for signing. The advice and assistance grant should not be submitted on Legal Aid Online until the signature of the child, or their representative where appropriate, has been obtained on the declaration form.
- The child, or their representative where appropriate, should never be asked to sign a blank or incomplete declaration form.
- The nominated solicitor must always sign the solicitor’s section of the declaration form when acting as the child’s solicitor.
Where the applicant is an adult:
- A grant of advice and assistance (including ABWOR) for an adult (usually a relevant person or person seeking that status) can only be made if you consider that the adult is capable of directly instructing you to act as their solicitor and they want you to provide them with advice and assistance.
- They must always sign the declaration form if they are making the application.
- A solicitor can never sign a declaration form on behalf of the applicant unless that solicitor is acting in a representative or fiduciary capacity, such as the adult’s curator ad litem. It is important to note that if you are acting as a solicitor on the direct instructions of the applicant you are not acting in a “representative or fiduciary capacity” unless you are appointed in some other capacity, such as a curator ad litem. You are acting directly as that applicant’s solicitor and therefore require their signature on the declaration form itself.
- If the applicant cannot write, leave the signature blank and you should note in the file that the contents of the declaration form have been fully explained to the applicant.
- If the applicant has someone acting in a fiduciary or representative capacity for them, such as a curator ad litem, then that person can sign the declaration form for them.
- The declaration form should only be signed by the applicant once it has been fully completed.
- The declaration form should be sent to the applicant for signing if they are not present when it is being completed and signed by you. You need to do this if they are instructing you as the nominated solicitor to act directly on their behalf. This could occur in situations where they live in England or are in prison and you have taken instructions over the telephone. The advice and assistance grant should not be submitted on Legal Aid Online until the signature of the applicant, or their representative where appropriate, has been obtained.
- The applicant, or their representative where appropriate, should never be asked to sign a blank or incomplete declaration form.
Print the completed Legal Aid Online application – Advice & Assistance only
You can print the successfully completed A&A online application using the option to print before you submit it to us. You can do this instead of completing the paper declaration form and using it to obtain your client’s signature. This is the simplest and most efficient way to obtain your client’s signature if you are completing the application through Legal Aid Online when the client is in your presence.
At the bottom of the printout, there is a space for the client's signature. Ensure that both you and your client sign and date this and that you keep it in the client’s file.
You do not have to send us a copy of the declaration form. However we will randomly verify that declaration forms have been completed and signed appropriately as part of our accounts, audits and quality checks and in term of the Children’s Peer Review Quality Assurance Scheme. If it has not you may not be paid for the work you carry out and/or we may seek to recoup from you any monies already paid out from the Fund.
