It is important that we ensure that:

  • Grants are correctly made in the manner prescribed by the legislation.
  • Only fees and outlays properly incurred under the scheme are paid.
  • Advice and assistance and ABWOR is only granted by you as the solicitor.

Advice and assistance and ABWOR being granted the solicitor, this monitoring can only be done after the event.

Our regulations [regulation 6 of The Criminal Legal Assistance (Fees and Information etc.) (Scotland) Regulations 2008] provide for us to carry out checks as to whether a solicitor correctly applied the relevant tests, whether merits or means tests, in admitting a client to advice and assistance or ABWOR.

6.—(1) Paragraphs (2) and (3) apply where, under the Legal Aid (Scotland) Act 1986–

(a) advice and assistance has been provided in relation to a criminal matter or assistance by way of representation has been provided in relation to a summary criminal matter; and

(b) the Board finds that the provision–

(i) was not (wholly or partly) in accordance with the relevant rules applying by virtue of that Act; or

(ii) was otherwise unjustified in the circumstances of the case (including by reason of inadequate assessment or verification of any relevant factor)

(2) In considering whether or not the provision was in accordance with those rules, the Board may have regard to any relevant guidance it has issued in relation to their application.

(3) The Board may–

(a) withhold (wholly) payment from the Fund in respect of the provision; or

(b) if such payment has been made, fully recover it.”

This provision relates to both advice and assistance and ABWOR. In circumstances where we decide that ABWOR should not have been provided to the client, we can withhold payment or, if payment has already been made, recover it. So we may decide that the Interests of Justice test was misapplied, that the person was not financially eligible or that vouching of the client’s financial circumstances was not available. It is important to obtain documentary evidence of your client’s financial circumstances wherever practicable.

The outcome may not always be recovery. We could decide, even though there was an error in applying a merits test, that you were still entitled to provide ABWOR. For example, you may have acted as an appointed solicitor on behalf of a client appearing on an undertaking; we may agree that it would have been appropriate to act under Interests of Justice ABWOR.

You should remember that these provisions relate only to payment, not the invalidation of the provision of ABWOR, which you have already granted.

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