Regulation 8 (1) states:
“A solicitor shall give advice and assistance in pursuance of Part II of the Act only if he has satisfied himself that the client is eligible to receive advice and assistance under the provisions of the Act and of these Regulations”.
It must be you who is personally satisfied in terms of regulation 8 (1) that your client is eligible to receive advice and assistance and who gives that advice and assistance. However, you can entrust certain aspects of the work to another solicitor in terms of section 31(2) of the Legal Aid (Scotland) Act 1986. A grant of advice and assistance cannot be transferred to another solicitor except in certain specific circumstances.
Only you (or counsel) can provide advice and assistance [Section 6 of the 1986 Act].
The following can grant advice and assistance:
The following cannot grant advice and assistance:
However, they can carry out certain tasks delegated to them by you and are paid at the lower rate.
A non-qualified member of your staff may carry out preliminary work to help the solicitor when they consider the application.
A safeguarder, even if they happen to be a practising solicitor, cannot provide advice and assistance to a child. Advice and assistance can only be provided by you when acting as a solicitor [section 6 of the Legal Aid (Scotland) 1986 Act]. A safeguarder appointed by a children’s hearing or a sheriff can receive payment from Children 1st for work carried out. We cannot pay any charges made by a safeguarder.
It is important to note, unlike the position for curators ad litem, a safeguarder cannot carry out a dual function and act as both a safeguarder to the child and a solicitor to the child.
A separate solicitor can be instructed by the safeguarder to act for the child. However, in this circumstance, the safeguarder cannot apply for advice and assistance on the child’s behalf unless the child has sufficient capacity to instruct the safeguarder to do so.
If the safeguarder instructs you to appear on their behalf, instead of the child’s behalf, then you can provide advice and assistance to them. In this circumstance, it is the safeguarder’s personal resources that must be taken into account when you determine eligibility. In addition, if you grant advice and assistance to the safeguarder then you will receive payment from the Fund for all work carried out. The safeguarder cannot make a claim against the Fund in this circumstance.
A curator ad litem, even if they happen to be a practising solicitor, cannot provide advice and assistance to a child or incapable adult. In terms of section 6 of the 1986 Act advice and assistance can only be provided by you acting as a solicitor.
At present there are no statutory provisions, concerning remuneration of curators ad litem in children’s proceedings. Any charges made by a curator for work carried out solely in that capacity cannot be paid from the Legal Aid Fund or by Children 1st.
A curator ad litem is entitled to act in a dual capacity as both curator to the child or incapable adult and solicitor to the child or incapable adult. The curator can apply for advice and assistance on behalf of the child [regulation 6(2) of the Advice and Assistance (Scotland) Regulations 1996].
Where a curator acts in a dual capacity, we can only pay for:
No charges can be made to the Fund for work that is:
The curator ad litem can instruct a separate solicitor to act for the child even if they are also a practising solicitor. In this circumstance, you must take into consideration the child’s resources. If you grant advice and assistance to the child then it is you who can receive payment from the Fund for work carried out. The curator ad litem cannot claim against the Fund.
There is no statutory payment mechanism for common law curators ad litem.
If the curator instructs you to appear on their behalf, as opposed to the child’s, then you can provide advice and assistance to the curator if eligible. In this circumstance it is the curator’s personal resources that must be taken into account when you determine eligibility. In addition, if you grant advice and assistance to the curator then it is you who can receive payment from the Fund for the work. The curator ad litem 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.