Initial limits and increases in authorised expenditure

The Legal Aid (Scotland) Act 1986 [section 10], as amended from time to time by the Advice and Assistance (Financial Limit) (Scotland) Regulations 1993, prescribes an initial limit as amended by the 1993 regulations. This is the amount of money available to cover your fees and outlays before asking us for an increase in the level of authorised expenditure, depending on the nature of the advice and assistance that you are providing.

The financial limit regulations [regulation 3(c)] prescribe three separate initial limits of £50 and £115 for summary criminal advice depending on the circumstances in which the advice is given, and £215 for a solemn case.

Where the advice and assistance relates to:

• A criminal matter as regards which a summary complaint has been served, £115. 
• A criminal matter as regards which a fixed penalty, compensation or work offer has been made under section 302, 302A or 303ZA of the 1995 Act, and the offer or any resulting measure occurring under that section is to be challenged (including by non-acceptance of the offer or by disputing whether the offer has been accepted), £115.
• Any other summary criminal matter, £50.
• Where the advice and assistance or assistance by way of representation relates to a solemn criminal matter, £215.

The lower initial limit of £45 applies where the client needs:

• General advice
• Pre-complaint advice
• Advice in connection with a direct measure

The £45 limit should be sufficient for the provision of such advice, including advice in connection with English or foreign proceedings.

There is no criminal equivalent to “diagnostic” advice and assistance which is available in civil matters. This is simply the lower initial limit. You are entitled to seek an increase in authorised expenditure should the £45 limit be insufficient.

The higher initial limit of £115 applies where the client needs advice in connection with:

• A summary complaint
• A direct measure which is to be challenged
• A solemn criminal matter

The higher initial limit of £215 applies where the client needs advice in connection with a solemn matter.

You are entitled to seek an increase in authorised expenditure if appropriate.

The following are initial limits when providing ABWOR paid on a fixed payments basis:

• A JP court case £500
• A sheriff court case £750

These limits cover the standard ABWOR block fees, and the additional fee for any diet where a Criminal Justice Social Work report (CJSW) is being considered, the holiday court supplement when it applies, with the balance for any outlays.

The following are initial limits when providing ABWOR on a non-fixed fee basis:

• Parole Board proceedings, £215
• Other post-conviction breach/review proceedings under regulation 4 of the ABWOR regulations, £215
• Double jeopardy proceedings, £215
• Obstructive witness order in respect of witnesses apprehended under Section 90A, breach of bail, the review or orders made, or, as the case may be, appeals in respect of orders made under regulation 4(j), £215

Where you believe the cost of the work, including incurring an outlay, is likely to exceed the initial limit, you must before you incur the cost:

• Apply to us for authority to exceed the limit (using the online increase application).
• Provide us with sufficient information to enable us to deal with your request.

We cannot grant an increase retrospectively.

Where work is undertaken on the same day as the grant of an increase, we shall assume that it was done after the approval. This is just an assumption and if it becomes apparent that work was done or outlays incurred before the grant, it is not chargeable to the Fund.

Template increases are available in connection with criminal matters in a limited number of circumstances. This allows us to grant a larger amount to cover several hearings without you having to come back to us each time you appear in court.

In a fixed payments case, you may apply for an increase in expenditure in connection with additional fixed payments (add-ons) e.g. an unusual number of deferred sentence hearings, or outlays. You cannot apply for, and we cannot allow an increase in connection with work included within the prescribed fixed payments, or fees outwith the fixed payments structure.

Increase requests under A&A must not include any work in connection with representation.

You should be particularly careful, in the context of proceedings under ABWOR with the potential for mounting costs and outlays, to ensure that you remain within a sufficient limit of authorised expenditure to cover your costs.

Although we add VAT to your fees, you must still apply for sufficient authorised expenditure to meet the VAT on the outlays that you may incur, including the cost of travel. The employment of counsel is an outlay under A&A and ABWOR.

You can notify us that you are providing advice and assistance or ABWOR under the Criminal Justice (Scotland) Act 2016 in connection with the following:

This form of advice and assistance (a CJA grant) differs from normal A&A in that there is no financial assessment, no provision for a contribution and is chargeable on a block fee basis.

You should use this where:

• Advice and assistance is for your personal attendance and the client has exercised the right to a consultation [section 44 of the Act 2016] (initial limit £250).
• Advice and assistance is for your personal attendance and the client has exercised a right to have a solicitor present [section 32(2) of the Act] (initial limit £600).
• ABWOR is for review of a condition [section 19 of the Act] (initial limit £385).
• ABWOR is for review of a condition of an undertaking [section 30 of the Act] (initial limit £385).
• ABWOR relates to an application for authorisation for questioning by a prosecutor [section 36(1)(a) of the Act] (initial limit £385).