To be eligible for ABWOR in summary proceedings, the client must be financially eligible for advice and assistance.
You must be satisfied that:
Additionally, in JP Court cases only, you must apply an interests of justice test where the case is marked as a cited or undertaking case, or meet the appointed solicitor criteria if the case is marked as a custody case.
Summary criminal ABWOR is only available in the circumstances laid down [regulations 6(1), and 6A]. The duty solicitor regulations [regulation7] prescribe the circumstances in which you may act as an appointed solicitor.
You can read more about how to apply these tests in the following guidance pages.
You should use Legal Aid Online to notify us that a grant of ABWOR has been made or, following an initial grant of advice and assistance, you are now providing ABWOR in sheriff court or JP court proceedings.
You should submit the standard notification of the grant of advice and assistance through legal aid online, making sure you complete the section on ABWOR.
If you do not submit a notification within 14 days of having begun to give advice and assistance [regulation 11], we can only accept late notification if we consider there is a ‘special reason’ to do so. Late notification of the provision of advice and assistance could result in our being unable to pay your account.
Taking into account the level of the fixed payments for summary criminal ABWOR and the potential for “add-on” payments, the initial limits of authorised expenditure for a summary criminal case under ABWOR are as follows:
As a result of the changes to the fee regulations in 2021, the initial expenditure levels in Criminal ABWOR fixed fee cases (£550 in Sheriff Court cases, and £185 in JP Court cases) need to be increased if a Criminal Justice Social Work (CJSW) report is being considered in the first two deferred sentence hearings. The add-on fee for that element of work means that the fee will exceed the limits (£551.57 in sheriff court cases, and £189.57 in JP court cases).
We have introduced an update to Legal Aid Online with an easy way of requesting an increase in the limit for these cases at the time of submitting the ABWOR application.
When submitting your ABWOR application, if a CJSW report has been, or is likely to be requested in a case, on the ABWOR details tab you should select ‘yes’ to the question ‘Is an SER/CJSW likely?’ If ABWOR is approved, this will increase the expenditure limit to £600 in Sheriff Court Cases and £250 in JP court cases, giving you sufficient expenditure to cover the add on fee for the CJSW report.
This can also be used for a third deferred sentence hearing if the CJSW report is not considered at either of the first two deferred sentence hearings. Although no separate increase application is submitted, you will receive a notification to advise you that an increase has been registered and where ABWOR is granted you will receive a further notification to advise that an increase has been granted.
More details on the changes to the online system can be found here.
You should use Legal Aid Online to ask for an increase in authorised expenditure.
Although you are entitled to payment under the fixed payments regulations, you should remember that ABWOR remains a form of advice and assistance and you must always ensure that you are acting within a sufficient level of authorised expenditure.
There is very little available excess over and above the principal fixed payments and if you need to carry out further work, for example deferred sentences that would take you beyond the initial limit, or you are likely to incur any outlay, you must apply to us for an increase in authorised expenditure to ensure that you have sufficient cover for additional costs.
Templates are available in certain circumstances. These allow you to apply for one increase to cover the costs of deferred sentences and post-conviction hearings.
If you are required to withdraw from acting for the client where you are providing ABWOR, you can notify us using a Legal Aid Online notification.
Unlike advice and assistance, a grant of summary criminal ABWOR can be transferred to another solicitor [regulation 14A of The Advice and Assistance (Scotland) Regulations 1996].
Assistance by way of representation (ABWOR) in summary criminal proceedings
Find out about the availability of “Interests of Justice” ABWOR in a summary case where the accused client is cited to appear or appears on an undertaking.