Who is a “person”?

Advice and assistance may be given only to “a person”.  A person is an individual. [section 6 of the Legal Aid (Scotland) Act 1986] Advice and assistance cannot be given to a company or a partnership.  A person includes someone under the age of 16 and also any other child as defined by section 199 of the Children’s Hearings (Scotland) Act 2011.

A child over the age of 12 is deemed to be capable of instructing you.  With a younger child you must form a view as to whether they are capable of understanding what is happening and of giving you direct instructions.  A child under the age of six would be unlikely to be capable of giving you instructions.

Someone who does not have the capacity to give instructions cannot be admitted to advice and assistance.

If your client cannot for good reason make the application in person, they can authorise some other person to apply on their behalf [Regulation 6 Advice and Assistance (Scotland) Regulations 1996].

Applications for advice and assistance by children

When your client is a child, application for advice and assistance may be made on the child’s behalf by:

  • any person having parental responsibilities for the child within the meaning of
  • Any person who the child is in the care of
  • A person acting, for the purpose of any proceedings, as the child’s tutor or curator.

Applications for advice and assistance by a safeguarder on behalf of a child

A safeguarder cannot apply on behalf of the child for advice and assistance, unless that child has sufficient capacity to authorise the safeguarder to make an application on their behalf [regulation 6(1)(a) of the Advice and Assistance Regulations 1996].

Applications for advice and assistance by safeguarders and curators ad litem

A safeguarder and a person appointed to act as a curator ad litem can receive advice and assistance, if eligible.  If such a person instructs you to act for them, as opposed to the child, then it is their financial resources that you must take into account when assessing eligibility.  If you grant advice and assistance to a safeguarder or a curator ad litem then you will receive payment from the Fund for work carried out.  The safeguarder or curator cannot claim against the Fund in this circumstance.

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