Your client will recover or preserve property under advice and assistance if they get something they didn’t own before, if they keep something that someone tried to take or they retain property which was part of the settlement and they already previously owned.
However, the clawback provisions in advice and assistance vary in several ways from those applied in civil legal aid. The main difference being that under civil legal aid, your client is entitled to their own one half share of any jointly owned property as long as it was not put at issue in the proceedings. Under advice and assistance there are no half sharing provisions.
What sort of property can be recovered or preserved?
Property has a very wide meaning, and includes anything that can be owned. Examples of property include:
a payment made by the Criminal Injuries Compensation Authority
a payment of compensation from any other source
money paid by a spouse or partner on divorce or dissolution of a partnership
employment tribunal payments
Any item which has a monetary value can be recovered or preserved in an action.
What sort of property is exempted from property recovered or preserved?
Regulation 16(2) lists categories of property recovered or preserved to which section 12(3)(c) of the Act does not apply. Only property specifically excluded in regulation 16(2) is exempt from clawback. Among the types of property exempted are:
Some maintenance payments
Some state benefits
Your client’s household furniture or the tools of their trade
Scottish child payments
Payments made under the Windrush Compensation Scheme or connected to Windrush
Child Disability Payments (CDP)
Short Term Assistance Payments while CDP award is under appeal
Any payment under Part 4 of the Redress for Survivors (Historical Child Abuse in Care (Scotland) Act 2021
Adult Disability Payments (ADP)
Short Term Assistance Payments while the ADP award is under appeal
Any payment made under the Scottish Infected Blood Support Scheme
Any additional payment made under the Social Security (Additional Payments) Act 2022 (cost of living)
Any temporary additional amount to the social fund winter fuel payment paid by virtue of the Social Fund Winter Fuel Payment (Temporary Increase) Regulations 2022 (cost of living).
Matrimonial exemption allowances for applications received prior to April 2011
For applications granted prior to 1 April 2011 under regulation 16(2)(b), clawback does not apply to a specified initial limit (see the Keycard for up-to-date limits) of any money, or of the value of any property, recovered or preserved by virtue of –
an order for the payment of a capital sum under section 5 of the Divorce (Scotland) Act 1976;
an order for payment of a capital sum or transfer of property, or an incidental order, under section 8 of the Family Law (Scotland) Act 1985;
any settlement arrived at to prevent or bring to an end proceedings in which such an order may be granted.
There are no exemptions for applications received on or after 1 April 2011.