You need our prior approval for work of an unusual nature or likely to involve unusually large expenditure [Regulation 21 Civil Legal Aid (Scotland) Regulations 2002].
All work done is subject to our scrutiny and possible abatement and may also be subject to taxation by the auditor. The requirement for prior approval operates as a safeguard for you. It is much better for you to know in advance that we are satisfied it is appropriate for you to carry out the proposed work.
It is important to note that the regulations mean we CANNOT grant approval retrospectively for unusually large expenditure so you must obtain approval before the work is instructed otherwise we cannot make payment.
Where the cost of the work likely to involve unusually large expenditure is below £2,000 excluding VAT, you do not need our approval.
We regularly get asked about some scenarios which need approval for unusual work, or unusually large expenditure.
Use the drop down menu below to select a type of work and find out when approval would and would not be needed, and any guidelines on how the cost will be assessed.
Other examples of work of an unusual nature or likely to involve unusually large expenditure are:
Where a child welfare report is ordered by the court and the cost will not exceed £3,000 you do not approval irrespective of whether the report is ordered ex proprio motu or not. If the cost of the report is to be in excess of £3,000 our prior approval is needed irrespective of whether the report has been ordered ex proprio motu or not. Your approval request needs to give details of the costs to be incurred and reasons why funding beyond £3,000 is required. The £3000 limit is exclusive of VAT and outlays that may be incurred to third parties when preparing the report but is inclusive of outlays incurred directly by the child welfare reporter such as travel costs. The cap applies to each individual report prepared in a case rather than being a global limit to cover the cost of several reports.
Approval requests must be submitted via the online ‘Sanction’ function. This provides us with all the basic information and papers needed for a prompt decision. You should apply as soon as possible and not leave it until a proof or other hearing is imminent. A request for approval should not be made via an online message.
If proceedings have already been commenced when you seek approval, you should:
When applying for approval for work of an unusual nature or likely to involve unusually large expenditure, you should:
Mediation is available both from:
Some RSMS offices offer “all issues” mediation (for example, on issues relating to financial provision) and charge a fee for providing this service. If you want to make use of RSMS “all issues” mediation the same rules apply as for using CALM mediators.
CALM mediators offer a comprehensive mediation service including financial matters and issues about children and charge for the service.
You must get our approval before making use of mediation involving CALM or RSMS where a fee is charged. We recommend you use the template for family mediation for this work.
Legal aid will cover your client’s half share of the total mediation fee but not the opponent’s half share. If the opponent is also receiving legal aid or advice and assistance they can ask us to meet the cost of their half share.
The costs of non-family mediation may be allowed under civil legal aid. We will regard the costs of mediation in non-family cases as an outlay in your account.
Any approval covers your client’s own share of the total mediation fee only. If the opponent is also receiving legal aid or advice and assistance they can ask us to meet the cost of their half share.
We will only consider requests for mediation involving accredited mediators
For both family and non-family mediation you should get our approval before incurring the outlay.
We need the following information:
Where someone has a grant of civil legal aid (to be paid on a time and line basis), we will also consider paying your fees to attend the mediation if you can demonstrate that this would be reasonable and would assist the process of mediation.
The cost of paid for supervised contact may be allowed where we are satisfied that the work will help to decide the case either judicially or extra judicially. Supervised contact involves the one on one presence of a contact centre’s staff member throughout the session.
An application should address the following:
If possible, a copy of the interlocutor ordering supervised contact should be provided with the sanction application.
If a final interlocutor is made, ordering contact on a supervised paid for basis then this is an expense that your client has to meet from their own funds. We cannot be responsible for any costs in connection with supervised contact after the court case has concluded.
The cost of family therapy may be allowed where it is ordered by the court to resolve a family dispute. This works allows all parties to feel they have been heard and to let them understand that the needs of their children are the priority.
The therapist to be instructed should be a fully qualified family therapist who is a member of the Association for Family Therapy which is regulated by the UK Council for Psychotherapy, the British Association for Counselling and Psychotherapy, COSCA (Counselling & Psychotherapy in Scotland) or another recognised regulatory body.
Where an application is made for family therapy you need to:
The Vulnerable Witnesses (Scotland) Act 2004 contains provisions relating to child and adult vulnerable witnesses and, in particular, special measures that can be put in place in certain circumstances.
You may need to seek our approval to use special measures to assist child and vulnerable adult witnesses. Such items include:
Vulnerable witnesses and evidence on commission
If you are the person seeking this special measure, you can get cover for the costs of the commissioner appointed from us (if the commissioner is not a sheriff or judge in which case the Scottish Courts and Tribunal Service meets the costs).
It is important to include in your request all associated costs such as:
Any associated costs not approved timeously cannot be paid for from the Fund.
Where appropriate, we need a detailed breakdown of the time spent and the rates charged for our Accounts Assessment Department to properly assess the outlay claimed.
The power to grant retrospective approval applies only to counsel, expert witnesses and unusual work. It does not apply to work likely to involve unusually large expenditure.
We may grant retrospective sanction for unusual work if we are satisfied we would have given approval and that there was special reason why prior approval was not applied for. This would have to be more than mere oversight.
After a grant, and prior approval needed
This page includes information on arrangements for the employment of counsel under civil legal aid. It includes information on: the tests applied in our assessment of requests for counsel (whether case-related, or linked to your circumstances); timing of requests; limited use of counsel for opinions etc.; and retrospective grants for the employment of counsel.
After a grant, and prior approval needed
This page includes information on the employment of expert witnesses in civil legal aid. The guidance includes information on when prior approval is required; the application procedure (including use of templates); how to distinguish an expert witness and the status of certain common types of witnesses; timing of applications; how we will assess experts’ costs; and cost limit information.