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].
When your client is a child, application for advice and assistance may be made on the child’s behalf by:
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].
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.
Availability of Advice and Assistance
This page includes a list of example questions you may want to ask clients when assessing their financial eligibility for advice and assistance, and relevant information you should see. It includes questions to ask child applicants; married or cohabiting applicants; and applicants with more than one dwelling house. It also covers the issue of deprivation of resources, and what to do if the client is unable to answer these questions at a first meeting.