The Legal Aid and Advice and Assistance (Miscellaneous Amendments) (Scotland) Regulations 2022 are set to increase fees by 5% on 1 April 2022.
The regulations will also introduce an additional fee to solicitors representing an accused person appearing from custody when doing so on a day which has been designated a court holiday.
The regulations are available here.
The increase was announced in December 2020 by the then Justice Secretary Humza Yousaf following a series of meetings with the Law Society of Scotland. The increase in fees is the second tranche of a 10.25% uplift in fees over the last two financial years.
The increased fees are being introduced while opportunities continue to be explored for longer term reforms to the legal aid system in Scotland. Those reforms will involve the collaboration and engagement of key stakeholders to work together to advise the Scottish Government on an evidence-based approach for a review of payment structures and levels for legal aid services.
The Legal Aid and Advice and Assistance (Miscellaneous Amendments) (Scotland) Regulations 2022, which gives effect to the fee increase, will amend the following regulations made under the Legal Aid (Scotland) Act 1986:
The Legal Assistance guidance will be updated to reflect the changes to the fees.
The regulations allow for the fee increase, with the exception of the undernoted proceedings, to apply to fees for work done on or after the 1 April 2022.
Where the work is conducted over more than one date, the work is deemed to have been done on the day on which the work comes to an end.
The practical effect of this is that fees can be charged at the increased rate where a block fee is completed after the coming into force date.
Similarly, where the account is chargeable on a detailed basis and a continuous item of work commenced before but concluded after the coming into force date that work would be chargeable at the increased fee rates.
For proceedings which are chargeable in terms of:
the increase will apply only in relation to a case where the criminal legal assistance concerned is granted or made available on or after 1 April 2021.
Provision has also been introduced for an additional fee to be paid to solicitors representing an accused person appearing from custody when doing so on a day which has been designated a court holiday:
The additional fee of £80 will apply, where appropriate, in the following cases:
Regulation 7(5) of the Criminal Legal Assistance (Fees and Information etc.) (Scotland) Regulations 2008, has been amended ensuring that holiday court fees are not subsumed within a single consolidated payment where different types of criminal legal assistance are given in relation to the same matter.
Regulation 3(8) also makes textual amendments to the headings in the fee tables in Table A, Parts 1 and 2 of Schedule 4 of the 1989 Civil Fees Regulations which makes provision for fees of junior and senior counsel for proceedings in the Court of Session, to clarify which fees are to apply where the work done is not specified in any of the chapters in those tables.
Although not part of the fee increase, regulations mileage incurred on or after 1 April 2022 will be payable at an increased rate of 45p per mile.
In line with previous guidance and to assist you in claiming the fee increases referred to above it is important that you are aware of the differences in what we are able to do depending on whether:
The system will continue to work on the basis that the old online accounts system (FAMS) will only be available where there has been a previous claim for that reference number.
We expect all paper accounts to be claimed at the appropriate legal aid rates. Accounts may be returned where the incorrect legal aid rates have been used or new rates have not been applied where appropriate.
Where you are directed to the old system due to previous payments, the online fees have not been updated as we do not propose to make changes to that system as it is being phased out.
As the fee increase is not being automatically applied we will calculate the amount due and process this as a separate supplementary payment which will be done on the same day.
The fee tables on the new online system have been updated to the new rates as per the regulations. The system will automatically generate the correct fees for you.
Details of the different methods of submission are noted below.
Where you submit your account online, when you select the ‘Save & Continue (online)’ option where applicable the fee increase will be automatically applied to your account as the fee tables have been updated to the new levels as per the regulations.
Where you select ‘Save & Continue (paper)’ you should ensure that the account is framed correctly in accordance with the new table of fees from the date the fee increase applies otherwise your account may be rejected.
As mentioned previously, the fee increase is not being automatically applied and we will calculate the amount due and process this as a separate supplementary payment which will be done on the same day.
These Regulations are being introduced to accommodate the increased fee rates and make amendments to the:
and come into force come into force on 1 April 2022, to correspond with the coming into force date of the fee increase regulations.
The changes ensure that despite the increased fees the duty session limit will continue to cover the same number of accused persons when the fees regulations were introduced.
In addition, where, following a plea of guilty or in circumstances where the accused has not been called on to plead, and one or more adjournments are ordered by the court the limit payable to solicitors without applying for an uplift in the limit has been increased from £150 to £250.
This should significantly reduce the need for solicitors to apply for an uplift.
The majority of the initial limits of authorised expenditure under Advice and Assistance or Assistance by way of Representation (ABWOR), where solicitors are required to seek the prior approval of the Scottish Legal Aid Board before providing further advice and assistance or ABWOR, have been increased. The increased limits should reduce the need for solicitors to apply for increases in many cases. The new limits are:
The initial expenditure limits have automatically increased as at 1 April 2022, unless the case has concluded or a prior increase in expenditure has been granted which exceeds the new prescribed limit in any given case.
If you have any enquiries regarding this please contact:
To accommodate the increased fees, we have also raised the limits of the template increases you can apply for to get additional expenditure for additional court hearings. The details are:
The necessary system changes are being made to ensure that grants of advice and assistance made on or after 1 April 2022, the new expenditure limits, where appropriate, will be applied. The increased duty session limits apply to work done on or after 1 April 2022.
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