Proceedings requiring our prior approval before granting ABWOR

Under regulation 13 of the Advice and Assistance (ABWOR)(Scotland) Regulations 2003, you need to get our prior approval to provide ABWOR before:

  • An employment tribunal
  • The First-tier Tribunal for Scotland
  • The First-tier and Upper Tribunals (other than for immigration and asylum)

You should seek that approval either when you first apply or by seeking an uplift to ABWOR. Before giving such approval, we must be satisfied about certain matters specified in regulation 13

Petition for appointment of an executor: stages covered by ABWOR

ABWOR covers all work in connection with a petition for the appointment of an executor up to obtaining an extract decree of the appointment. If at any stage the proceedings become opposed, ABWOR must then stop.

Proceedings before the First-tier and Upper Tribunals: tests we apply in granting ABWOR

The tables below set out the criteria to be applied, and by whom, in assessing whether ABWOR can be made available.

ABWOR is not available for any First-tier or Upper Tribunal proceedings not listed in these Tables.

You should be satisfied that the tribunal deciding the case will do so sitting in Scotland. This will be obvious in the vast majority of cases.  Our position is that a tribunal is sitting in Scotland where your client (with their legal representative) is situated in Scotland even if the tribunal, via a video link, is sitting in London.  This is also the position of the tribunal service.

Table I (First Tier Tribunal)

Summary of eligibility tests.

Tribunal

 

Chamber Proceedings Means test Merits test Criteria
First-tier Immigration and Asylum All Yes – you apply standard means test No N/A
  Tax Section 60, Value Added Tax Act 1994 Yes – you apply standard means test Yes – we apply test Interests of Justice
    Section 8, Finance Act 1994

 

Yes – you apply standard means test Yes – we apply test Interests of Justice
    Schedule 24, Finance Act 2007

 

Yes – you apply standard means test Yes – we apply test Interests of Justice
    Schedule 41, Finance Act 2008

 

Yes – you apply standard means test Yes – we apply test Interests of Justice
  Pensions Regulator Appeal against a decision of the Pensions Regulator

 

Yes – you apply standard means test Yes – we apply test Interests of Justice

 

Table II (Upper Tribunal)

Summary of eligibility tests.

Tribunal Chamber Proceedings for which ABWOR is available Means test Merits test Criteria
Upper Tribunal Immigration and Asylum Appeal, where first-tier tribunal has given permission to appeal

 

Yes – you apply standard means test No N/A
  Immigration and Asylum Appeal, where first-tier tribunal has not given permission to appeal

 

Yes –  you apply standard means test Yes –you apply test Effective participation
  Administrative appeals Section 4, Vaccine Damage Payments Act 1979

 

Yes –  you apply standard means test Yes – we apply the test Effective participation
    Section 20, Child Support Act 1991 Yes – you apply standard means test Yes – we apply test Effective participation
    Section 12, Social Security (Recovery of Benefits) Yes – you apply standard means test Yes – we apply test Effective participation
    Section 12 or 13, Social Security Act 1998

 

Yes – you apply standard means test Yes – we apply test Effective participation
    Section 39, or paragraph 3 of Schedule 2 to the Tax Credits Act 2002 Yes – you apply standard means test Yes –  we apply test Effective participation
    Section 158, Health and Social Care (Community Health and Standards) Act 2003 Yes – you apply standard means test Yes – we apply test Effective participation
    Section 23 Child Trust Funds Act 2004 Yes – you apply standard means test Yes – we apply test Effective participation
    Section 50, Child Maintenance and Other Payments Act 2008 Yes – you apply standard means test Yes – we apply test Effective participation
  Tax and Chancery Appeal against a penalty imposed under section 60, Value Added Tax Act 1994 Yes – – you apply standard means test Yes – we apply test Interests of Justice
    Appeal against a penalty imposed under section 8, Finance Act 1994 Yes – you apply standard means test Yes – we apply test Interests of Justice
    Appeal against a penalty imposed under Schedule 41 to the Finance Act 2008 Yes – you apply standard means test Yes – we apply test Interests of Justice
    Appeal against a decision of the Pensions Regulator Yes – you apply standard means test Yes – we apply test Interests of Justice
    Appeal against a decision made under or by virtue of any of sections 1 to 5A of the Pensions Appeal Tribunal Act 1943 by a Pensions Appeal Tribunal or the first-tier tribunal

 

Yes – you apply standard means test Yes – we apply test Interests of Justice

 

Table III (First Tier Tribunal for Scotland)

Summary of eligibility tests

Tribunal

 

Chamber Proceedings Means test Merits test Criteria
First-tier Health & Education Chamber   Yes – you apply standard means test Yes – we apply test Effective participation

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