Processes – our administration of the legal aid application

You have to satisfy us that there is probable cause to litigate and that it is reasonable to grant legal aid in exactly the same way as you would for any other decision-making public body. The minimum requirements apply equally to applications against us.

Where we initially refuse legal aid and you apply for a review it is considered by our Legal Service Cases Committee (“LSCC”) which comprises SLAB members, co-opted members who are experienced legal practitioners and senior SLAB officials.   Unless the LSCC grants the review, it is referred to the Sheriff of Lothian & Borders at Edinburgh in terms of section 14(4) of the Legal Aid (Scotland) Act 1986.

Referrals to the Sheriff

Where the application is referred to the Sheriff, the application papers together with any observations made by your client and us are sent to the court.   The sheriff decides the merits of the application. The sheriff’s decision is final.

Where the sheriff directs that legal aid is to be made available then, subject to your client being financially eligible, we will grant the application.

Processes – us as the opponent

We, as an opponent, are no different from any other situation although we will and could not, make representations to ourselves.

We encourage dialogue with your client to see if the matter can be resolved.    We recognise that mistakes in decision-making can occur and welcome any opportunity to put that right.  As with any other opponent, it is open to us to review the challenge to the original decision and if this case has merit.  We may discuss with you whether, as a matter of agreement, an application or decision can be re-opened for the purpose of a fresh consideration.

Where this is agreed:

  • We may consider the original application afresh
  • We may grant your client’s application, or again refuse it, whether for the same or different reasons.

While you need not agree to this approach a failure to participate in extra-judicial discussions which could or would resolved an issue without the need for court proceedings may have a bearing on the reasonableness of a grant of legal aid.

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