Advice and assistance may be given only to “a person” [section 6 of the Legal Aid (Scotland) Act 1986]. A person is an individual, including those under the age of 16. Advice and assistance cannot be given to a company or a partnership.
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 instructions.
Your client who for good reason cannot make the application in person can authorise some other person to apply on their behalf.
Bodies corporate or unincorporate: definitions and limited circumstances where A&A can be received
Advice and assistance may not be given to a corporate or unincorporate body, except where the body is acting in a representative, fiduciary or official capacity.
Examples of a body corporate would be a limited company, a plc, or a company established by a charter or by Act of Parliament
Examples of a body unincorporate would be a firm or partnership including a limited partnership, a club, society or association
Advice and assistance cannot be given to any of these bodies, or anything that seems to be of a similar type, in their own right. Advice and assistance to people such as company directors can only be in respect of their personal, individual interest – not their corporate interest.
Where your client has other rights and facilities: definition and limited circumstance where A&A can be received
You cannot grant an application for advice and assistance where your client has other rights or facilities or a reasonable expectation of getting financial help from another body. Therefore, you must ask your client if they have:
Legal expenses insurance
Cover under a car insurance policy
Assistance available from a trade union or a local authority
Access to advice on general issues from the Scottish Prison Complaints Commissioner.
We can allow you to proceed to provide advice and assistance where your client has other rights if we consider there is a special reason for doing so. For example, your client may suggest a conflict of interest or previous unsatisfactory dealings with the solicitor as to why they do not wish a solicitor nominated by the other body to help them.
You can ask us in writing to reconsider any application for advice and assistance we have refused.