Under Regulation 16 of the Civil Legal Aid (Scotland) Regulations 2002, we cannot grant legal aid to your client if they have other rights and facilities that make it unnecessary for them to get assistance, or if they have a reasonable expectation of getting financial or other help from a body of which they are a member.

We may be able to grant legal aid if your client has failed to enforce or get those rights, facilities or help after taking all reasonable steps to enforce or get them (short of taking proceedings by way of declarator).

What are other rights or facilities?

Other rights or facilities may include:

  • Rights to indemnity under an insurance policy (legal expenses insurance, home insurance, motor insurance).
  • Membership of a professional association or trade union.

What do I need include in an application if my client can’t access these?

  • You must explain why your client is not using the legal assistance of a professional body or trade union if they are a member of one that provides this service.
    • We need to know the reasons why if the union is refusing to help. This may have a bearing on probable cause and reasonableness.
  • We need to know why your client has not applied to their union or has decided to stop taking its advice if this has happened. We may accept they have good reasons to be dissatisfied with the performance of the union-nominated solicitors. However, remember that trade unions nominate specialist firms to deal with personal injury claims.
    • It would not be reasonable to make legal aid available because your client prefers to instruct their own solicitor rather than a union-nominated solicitor.
  • You must ensure that you ask about all of these potential sources of funding before applying for legal aid. We will consider terminating any grant of civil legal aid that may have been made if we find that such sources of funding exist and we were not told about them.

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