Statutory criteria for legal aid for sheriff court appeal proceedings relating to deemed or undeemed relevant person status

Statutory criteria

Before we grant legal aid to your client seeking deemed relevant person status (or where they have been undeemed a relevant person) for related appeals in the sheriff court we must be satisfied:

  • That it is reasonable in the particular circumstances of the case that your client should receive children’s legal aid;
  • That, after consideration of the disposable income and disposable capital of your client the expenses of the case cannot be met without undue hardship to them
  • That your client has substantial grounds for making or responding to the appeal

Financial eligibility

You must give us full information in the application. This will enable us to carry out a financial assessment and establish whether expenses of the case can be met without undue hardship to your client.

Reasonableness

The reasonableness test provides us with a very wide discretion so if there is any factor that you think is relevant you need to draw it to our attention. We consider all the circumstances of each individual case.

We will consider:

  • Your client’s current and past living arrangements
  • Whether or not they are or have been in Local Authority care.

While it is impossible to list all of the considerations we will take into account we offer some factors by way of example:

  • If the outcome of the appeal will materially affect your client and how
  • If the outcome of the appeal will materially affect the child/children involved and how
  • If the outcome of the appeal could materially affect other proceedings relating to your client such as on-going or proposed civil proceedings
  • If the outcome of the appeal would have wider implications for other unrelated cases and/or children’s hearing and court related proceedings in general

You will also need to tell us:

  • Whether you are still within the 7 day statutory time limit to make or respond to the S160 appeal
  • Why you consider the decision of the pre hearing panel or panel hearing to be or not be justified
  • Why you consider that the pre hearing panel or panel hearing applied the correct or incorrect test in relation to the relevant person determination

We consider all the circumstances of each individual application and the fact that legal aid has been granted to another applicant or respondent in the appeal proceedings, including the child, does not necessarily mean that we will grant legal aid to your client.

Substantial grounds

You must also satisfy us that your client has “substantial grounds” for making or responding to the S160 appeal. This is a high test. Therefore, you must give us detailed information to address this. It will be insufficient to simply state on the online application form that “substantial grounds exist”.

You must explain in detail:

  • What the proposed substantial grounds are
  • Why you have reached the conclusion that they exist
  • Why you consider that the decision of the pre hearing panel or children’s panel hearing’s decision was or was not justified in all the circumstances of the case
  • Why you consider that the pre hearing panel or panel hearing applied the correct or incorrect test in relation to the relevant person determination
  • Why you consider that there are real/substantial prospects in persuading the sheriff to confirm or quash the relevant person determination
  • Our view is that to show that substantial grounds exist you must show that the grounds of appeal are more than merely stateable and have real prospects for success.

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