Guidance on applying for special urgency cover under the 2011 Act and the 2019 Act

If a legal aid application is urgent and a decision on the full application cannot be made in time then you can apply for special urgency legal aid or carry out certain specified steps in proceedings and tell us afterwards.

Depending upon the circumstances, and the type of urgent work you need to do, you may:

• go ahead and do certain specified work, and tell us about it afterwards. [Regulation 18 1(a) and 1A of Children’s Legal Assistance (Scotland) Regulations 2013 ] (see below for situations where this applies);or
• need to get our approval before doing the work [Regulation 18 1 (b)].

If we have approved work as a matter of special urgency to protect your client’s position, any legal aid that we subsequently grant will include that work.

Legal Aid application must be submitted within 28 days of starting the urgent work

Where the special urgency provisions are being used you must tell us and submit an application for full legal aid within 28 days of starting the work. When you have done work under regulation 18(1) (a) you must notify us of this at the same time as you apply for children’s legal aid. If you have already submitted an application you should use a special urgency notification.  If you do not, the work will be excluded from any legal aid that may be made available.

Special urgency legal aid is available for court proceedings under the Children’s Hearings (Scotland) Act 2011 and Part 4 of the Criminal Responsibility (Scotland) Act 2019.

Proceedings under the 2011 Act

For proceedings under the 2011 Act, you must always get our prior approval before you can carry out the work and be paid for the specially urgent work.

When we assess all applications submitted for cover in terms of regulation 18 of the Children’s Legal Assistance (Scotland) Regulations 2013, we have to decide if the work to be done is needed as a matter of special urgency to protect the position of your client.

Proceedings under the 2019 act

For proceedings under Part 4 of the 2019 Act, for certain specified steps in proceedings you do NOT require our prior approval and you can go ahead and carry out the work without needing our approval.

The steps you can take without our prior approval are :

• taking such steps as may be appropriate to intimate an intention to make representations in respect of an application for a Part 4 Order,
• taking such steps as may be appropriate to make representations in respect of an application for an order,
• moving to prorogate the time for compliance with any order or rule in relation to the Part 4 proceedings,
• moving for permission to appeal a decision,
• taking such steps as may be appropriate to initiate an appeal of a decision in relation to an order, and
• conducting an appeal of a decision in relation to an order.

You will require our prior approval for any other steps that are not listed above.

Special urgency legal aid is only available to parents and other interested parties under the 2019 Act.

More information on the availably of children’s legal assistance in Part 4 proceedings under the 2019 Act, including special urgency provision.

Regulation 18(1)(b)

If you are applying for our prior approval under regulation 18(1) (b) for court proceedings under the 2011 Act or 2019 Act you should submit a special urgency application.

If we grant approval, we may limit the work or subject this to conditions, as we consider appropriate.  While you do not need to notify us that work has actually been done following approval, you must ensure you have submitted a legal aid application within 28 days of beginning the urgent work.  If you do not, the work will be excluded from any legal aid that may be made available.

We can refuse approval where any earlier application by your client for the same proceedings has been refused, treated as abandoned or terminated, unless you satisfy us that there is a realistic prospect that legal aid will be granted on reconsideration or in a further application.

We are not obliged to grant approval where:

• your client has failed to provide sufficient information
• information has not been supplied because of undue delays on your part.

Each application for our prior approval is considered on its own individual facts and circumstances.  It is crucial that your reasons for the special urgency are included within the body of the application form.  Consideration of special urgency applications is a priority matter for us and it is your responsibility to identify clearly and concisely the special urgency and why steps need to be taken to protect your client’s position immediately.

Appealing a final decision of a children’s hearing under the 2011 Act

We do not, as a matter of course, grant special urgency cover for appeals against children’s hearings’ decisions under the 2011 Act involving a substantive decision on a full, rather than interim, compulsory supervision order despite the statutory 21 day time limit for lodging the grounds of appeal. If you are instructed by your client to appeal on the day of the hearing, or shortly thereafter, you will generally have enough time to submit a legal aid application for the appeal and have it determined in time to do any necessary work.  If we receive full and detailed information, including any financial verification required, a decision on your application can be given quickly.