1.1 What is advice and assistance?
1.2 What is “representation”?
1.3 What does advice and assistance cover?
1.4 English and foreign law
1.5 UK law
1.6 What are the different types of civil advice and assistance?
1.7 Standard advice and assistance
1.8 Diagnostic interview
1.9 Diagnostic categories
1.10 More than one diagnostic interview within three months
1.11 If you decide not to give further assistance
1.12 Moving from a diagnostic interview to standard advice and assistance
1.13 Factors we consider for a move to standard advice and assistance
1.14 If we agree to an uplift to standard advice and assistance
1.15 List of approved subject matters for standard advice and assistance
1.16 Distinct and “reasonably ancillary” matters
1.17 Approved subject matters that cover general matters such as legal processes
1.18 List of approved subject matters
1.19 Representation not covered
1.20 Proceedings where civil legal aid has been refused, or is not available
1.21 Is the advice and assistance a civil matter?
1.22 Who may provide advice and assistance?
1.23 Who is “the solicitor”?
1.24 Second year trainees and unqualified members of staff
1.25 Who can receive advice and assistance?
1.26 Who is a “person”?
1.27 Companies, partnerships, clubs and associations
1.28 Applicant having other rights and facilities
1.29 Commencement of advice and assistance
1.30 When is work chargeable?
1.31 Charges for time spent completing the form
1.32 Preparatory work that a non-qualified person may do
1.33 What non-qualified staff may and may not do
1.34 Questions to ask applicants
1.35 Getting information
1.36 Commencement of advice and assistance
1.37 The solicitor's responsibility
Unless otherwise stated, in this section "the Act" or "the 1986 Act" means the Legal Aid (Scotland) Act 1986, and “the regulations” means the Advice and Assistance (Scotland) Regulations 1996.
Advice and assistance is oral or written advice on a matter of Scots law provided to a person by a solicitor. It does not include taking steps in connection with instituting, conducting or defending proceedings unless assistance by way of representation (ABWOR) is available.
The definition of advice and assistance is set out in section 6 of the Legal Aid (Scotland) Act 1986:
““Advice and assistance” means any of the following:
(a) oral or written advice provided to a person by a solicitor (or, where appropriate, by counsel)
(i) on the application of Scots law to any particular circumstances which have arisen in relation to the person seeking the advice;
(ii) as to any steps which that person might appropriately take (whether by way of settling any claim, instituting, conducting or defending proceedings, making an agreement or other transaction, making a will or other instrument, obtaining further legal or other advice and assistance, or otherwise) having regard to the application of Scots law to those circumstances;
(b) assistance provided to a person by a solicitor (or, where appropriate, by counsel) in taking any steps mentioned in paragraph (a)(ii) above, by taking such steps on his behalf or by assisting him in so taking them.”
“Representation” means advice and assistance provided to a person by taking on their behalf any step in instituting, conducting or defending any proceedings. Representation therefore includes a number of steps short of actual appearance in court or before a tribunal and can only be given where ABWOR is available. (For further information about ABWOR see chapter 6.)
The definition is broadly stated and effectively includes advice on all matters of Scots law. You cannot give advice and assistance on a matter which does not involve the application of Scots law. It would not, for example, cover:
Equally, it has to be Scots law and you cannot give advice on a matter relating to:
You cannot competently grant advice and assistance on a matter of foreign law (including English or Northern Irish law). You may, however, give a diagnostic interview to advise on the application of Scots law to a particular situation, even if that advice is that Scots law affords no remedy and the matter must be pursued in another jurisdiction. That advice would extend to putting the client in touch with a solicitor in the foreign jurisdiction. We would be unlikely to agree to a grant of standard advice and assistance to do this.
Final sentence amended in May 2008
You can give advice and assistance on the Scots law aspects of matters of UK law, such as immigration, employment or social security. However, you can do so only where any remedy lies within the jurisdiction of the Scottish legal system (for example, where an appeal lies from a tribunal to the Court of Session).
This section (1.6 to 1.11) was added in April 2007
There are two types of civil advice and assistance: standard and diagnostic. The category codes card shows whether a matter is diagnostic or standard. Appendix 1 contains charts illustrating the procedures involved in both types of advice and assistance.
You can grant standard civil advice and assistance up to the initial limits of £95 or £180 (see paragraph 2.10 for explanations of these limits) where
You must get our authority to give standard advice and assistance if
If we refuse authority for the grant of advice and assistance, you can ask us, in writing, to review our decision.
Standard advice and assistance may also include ABWOR. “Standard advice and assistance” is just a shorthand way of describing advice and assistance, ultimately unlimited, subject to increases in authorised expenditure.
Diagnostic advice and assistance is the most basic level of advice and assistance. It allows you to provide advice and assistance on the application of Scots law to particular circumstances affecting your client that are not contained in the listed categories. (See regulation 2 for a definition of “diagnostic interview”.
Where the client’s problem does not relate to any of the listed categories, you can give a diagnostic interview to find out if, nonetheless, you consider that your client should receive further advice and assistance, or if some other agency might be able to help them. While a diagnostic interview is likely to be just that, a meeting, it includes:
Civil Category Code of FAM
The FAM code covers civil family issues where there is no other obvious code available. It should be used where there is:
• social work involvement on a voluntary basis
• no referral to the Reporter and/or no Compulsory Supervision Order in place for the child
• no realistic prospect of any CPO being sought by the SWD.
As an example, if you are giving advice to a client on the rights and obligations of the SWD where this involves their child who is residing in voluntary care, or giving advice about contact with their child in voluntary care, then the FAM category code should be used.
Children’s Category Code CHSA
The CHSA code covers work under the Children’s Hearings (Scotland) Act 2011, which deals with the Children’s Hearings System including where:
• the social work department (SWD) seeks a Child Protection Order,
• a child is referred to the Reporter
• and for all subsequent proceedings before a children’s hearings and related court proceedings.
The CHSA code does not cover voluntary social work involvement. It should be used where the matter concerns a referral to the children’s Reporter or where there is a realistic expectation that a Child Protection Order (CPO) will be sought imminently resulting in the Reporter’s involvement and the Children’s Hearing System.
If, for example, your client wants to withdraw their voluntary consent to their child residing outwith their care and the SWD have advised that they will seek a CPO if this happens, then the CHSA category code should be used.
The table below shows the categories of advice that are diagnostic matters. This list is included in the category codes card, which you should use to check if a matter is standard or diagnostic.
Debt – value less than £500 and does not include multiple individual repayment plans
Disciplinary proceedings before governor in relation to a prisoner
Disclosure Scotland Act
Data Protection Act
European Court of Human Rights
Fines enforcement and collection
Freedom of information
Human Rights Act
Transfer of agency - civil cases
Witness citation – civil
Fines enforcement and collection was added, and European Judgement Convention moved to the standard subject matters, in April 2008
You, or any other solicitor, can only provide a client with a diagnostic interview once during any period of three months from the date of an earlier grant of a diagnostic interview unless, in exceptional circumstances and on cause shown, you get our authority to give a second or further diagnostic interview.
To ask for our approval you can:
The online application allows you to explain why a further diagnostic grant of advice and assistance may be appropriate.
If we refuse authority, you can submit a review online.
If, following a diagnostic interview, you decide that your client does not need further assistance from a solicitor, or that there is no basis for you to apply to us to provide standard advice and assistance, or if we refuse to authorise this, your involvement ends. You may wish to suggest alternative sources of advice that might be available.
The Law Society has given its view that you do not need to send terms of engagement letters if the matter has been concluded within the grant of diagnostic advice and assistance.
You have three months from the date you finish the work involved in the diagnostic in which to send us your detailed account.
Authorised expenditure in a diagnostic case is £35, and there is a separate scale of client contributions for this (shown in the keycard). We cannot grant an increase in authorised expenditure for a diagnostic interview.
You may consider, as a result of the diagnostic interview, that a significant issue, equivalent to one of the listed subject matters, has arisen. If you think that any of the circumstances affecting your client requires “high-level” advice by a solicitor equivalent to a listed category, you can ask us for a determination that the subject matter be treated as if it were among those listed.
You can do this by:
You may initially grant advice and assistance as a diagnostic matter, and find there is a time gap until your client returns with a change in their situation. You may then wish to consider the matter as standard advice and assistance. Before applying to us to have the diagnostic matter considered as standard, it is important that you consider what the principal subject matter is for your client’s new situation. For example, your client’s problem may have reached the stage where an action needs to be defended or appealed to a court, and you can grant a new standard advice and assistance.
We will consider each request to move from diagnostic to standard advice and assistance on its own merits. The factors we will take into consideration include:
If you apply to uplift a diagnostic grant on Prison Rules to standard advice and assistance, we will consider each case on its own merits, but the factors we will take into consideration include:
If we authorise you to give standard advice and assistance for the case
The last of these bullet points was amended in August 2007
If you move from a diagnostic interview to standard advice and assistance, your client will have to pay any contribution due according to the scale of contributions for standard advice and assistance. You may wish to ensure that your client is aware that they may have to pay this higher amount. However, they only pay the balance between any amount they have paid for the diagnostic interview and the amount payable for the standard advice and assistance.
Where you approve an application for advice and assistance in relation to a civil matter, you must decide whether the advice and assistance relates to a “distinct” matter. This is simply a way of describing a significant piece of legal advice that a client would expect to receive from a solicitor.
We, in consultation with the Law Society, have set out an extensive list of categories of case that fall within this description (see below). Once a category of advice has been listed, it can only be removed from the list with the consent of Scottish Ministers. Since the legislation enables us to add categories to the approved list for standard advice and assistance, we can consider proposals that further categories of advice are added to the list. If you have suggestions for additional categories, please make them to the Law Society of Scotland or to us.
You can provide civil advice and assistance in connection with these listed matters, without applying to us for authority, up to the level of initial authorised expenditure of £95 or £180 (see paragraph 2.10 or our category codes card for explanations of these limits).
The list of subject matters recognises the possibility that you may have to give advice on individual matters such as divorce, reparation, sale of heritable property, residence/contact orders, all of which are distinct matters. However, where the subject matter to which the advice and assistance relates is a listed category you only approve one application for advice and assistance which includes:
For example, the primary category code could be DIV (divorce) and other related ancillary related matters could be RES (residence) and INT (interdict).
You are, in the words of section 6(1)(a) of the Act, providing advice to the client “on the application of Scots law to any particular circumstances which have arisen in relation to the person seeking the advice”.
This means that, for example, where you give your client advice and assistance on a divorce, the same certificate will include:
Examples of matters that should not be included under the same grant where you give your client advice and assistance on a divorce include:
You should not make a separate grant in respect of financial provisions in order to limit the amount payable by your client under the clawback provisions.
The fact that your client’s problem is not specifically shown on the list of approved subject matters does not necessarily mean that you cannot give them advice and assistance. Some of the approved subject matters are quite specific – for example, divorce, separation and reparation. Other categories are more general, and relate to the specific legal process a client’s problem may have reached – for example, summary application, general defence to any action and appeal to court or tribunal.
Therefore, if your client’s problem has reached the stage where an action needs to be defended or appealed to a court or tribunal, you can give them standard advice and assistance under these categories.
If the problem is not on the list, and it has not reached a legal procedure stage like this, you can still consider giving them diagnostic advice and assistance to offer brief general advice on the matter, and perhaps refer them to another agency.
Final paragraph added April 2007
Where a client has a problem in relation to a category in the list below, you can grant and provide standard advice and assistance.
Aliment/Child Support Agency
Adoption (including freeing order for adoption)
Child abduction/Hague Convention applications
Cohabitee rights under family law
Interdict (including interdicts under Matrimonial Homes (Family Protection) (Scotland) Act 1981)
Interdict (to include “other”, “matrimonial” and “protection from abuse” interdicts and including non-harassment orders)
Breach of contract
Contempt of court (including minutes for failure to obtemper)
Fatal Accident Inquiry
Bankruptcy/petition by debtor
General defence to any action (that is, where a client is in receipt of a writ)
Criminal Injuries Compensation Authority
Appeals to courts and tribunals
Restoration of driving licence
Anti-social behaviour orders
Sexual offences prevention orders
Proceeds of crime
European Judgement Convention
Recovery of heritable property (including eviction and Mortgage Rights (Scotland) Act 2001)
Division and sale
Landlord and tenant
Social welfare related
Adults with incapacity
Debt (where debts exceed £500, and the advice does not include multiple repayment plans)
Community care – assessment of need, eligibility/charging for services and direct payments.
Additional Needs Support Tribunal
European Judgement Convention added in April 2008
The category code of CHSA is a children’s category code and not a civil category code. It applies to proceedings under the entire Children’s Hearings (Scotland) Act 2011 where a child has been referred to a children’s Reporter or a Child Protection Order is sought in respect of that child. Please refer to the 2011 Act Handbook for further information on children’s advice and assistance.
The category code of CHC is a children’s category code and not a civil category code. It applies to children’s hearings proceedings that are still continuing under the Children (Scotland) Act 1995, Part II Chapters 2 and 3 only. Please refer to the 1995 Act Handbook for further information.
It is important to note that both the above category codes relate to a child who has been referred to the children’s Reporter and where the child or children in question are being dealt with through the children’s hearings system and associated courts.
It is acknowledged however that there are a number of cases where the social work department or other such agencies are involved with a child without there being any referral to the Reporter and associated children’s hearings involvement and which may require legal advice. Examples would be where a child was residing in care on a voluntary basis with associated child in care reviews or where there was social work involvement with a child due to the child being on the Child Protection Register with associated Child Protection Reviews or social work case conferences. These examples do not and cannot fall under the children’s category codes of CHC or CHSA if there is no additional involvement of the Reporter or children’s hearings system. The correct category code to use in these circumstances is the civil category code of FAM.”
Advice and assistance does not cover representation before a court or tribunal or in connection with a statutory inquiry, except where specific provision for ABWOR has been made by regulation. If ABWOR is not available, you cannot undertake any step in instituting, conducting or defending proceedings (except to negotiate a settlement in civil proceedings).
However, in civil proceedings before a court or tribunal a grant of advice and assistance allows you to:
For example, when providing advice and assistance (as distinct from ABWOR) you cannot:
Final paragraph added April 2007
Advice and assistance should not be viewed as an alternative to civil legal aid or as a source of funding for proceedings where we have refused civil legal aid. However, advice and assistance can still be used for the limited purpose of negotiating a settlement. If civil legal aid is available for the proceedings, you should apply for it at the appropriate stage so we can apply the tests of probable cause, reasonableness and financial eligibility.
In proceedings where civil legal aid is not available, such as a small claim, you may still give advice and assistance to help the client to frame the initial documentation. You can include a time charge in the account – this will often be subsumed within a meeting with the client to give advice on the remedies available. Charges for time spent actually framing such documents on the client's behalf or in lodging them in the court or tribunal cannot be included in the account. In general, clients can and should ask for help on procedural matters from the clerk of the court or tribunal, who may also be able to provide more detailed advice in certain types of cases.
We may, however, be able to make funding available for some continuing advice and assistance if we are satisfied that it is reasonable in the circumstances of the case. This may include situations where the client
Any advice and assistance given to help a client take steps in relation to proceedings will not include costs incurred in the citation or attendance in court of witnesses or any sums payable by way of caution.
Unless we have approved the provision of ABWOR, the advice set out above also applies to employment tribunals. However, sometimes either before or during the conduct of an employment tribunal, negotiations take place with the help of the Advisory, Conciliation and Arbitration Service (ACAS). We do not regard this as a step in conducting an employment tribunal and you may represent the client at a meeting with an ACAS representative.
It is competent for you to appear under advice and assistance for a client in a forum which does not fall within the definition of a court, tribunal or statutory inquiry. You must be satisfied the forum does not fall within that definition. An example might be representing the client's interests at an informal meeting with social workers to discuss the welfare of children.
Regulation 8(2)(a) requires you to decide whether the advice and assistance relates to a civil matter in accordance with guidance we issue. This has a bearing on the fees chargeable and the initial level of authorised expenditure available to you, as a higher limit applies to civil matters.
Regulation 8 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 the solicitor who is personally satisfied in terms of regulation 8 that the client is eligible to receive advice and assistance, 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 Act. A grant of advice and assistance cannot be transferred to another solicitor except in certain specific circumstances (see paragraphs 2.22 and 2.23).
Section 6 of the Act makes it clear that only a solicitor (or counsel) can provide advice and assistance. A second year trainee who has been admitted as a solicitor and has a practising certificate can grant advice and assistance and carry out all subsequent work as the solicitor. People who are not solicitors cannot provide advice and assistance to a client.
Someone who is unqualified, including first year trainees, or second year trainees who have not been admitted as solicitors, can only carry out tasks delegated to them by a solicitor and are paid at the lower rate. A non-qualified member of the solicitor's staff may, however, carry out preliminary work to help the solicitor when they consider the application (see paragraphs 1.32 to 1.37).
In terms of section 6 of the Act, advice and assistance may be given only to “a person”. A person is an individual. Advice and assistance cannot be given to a company or a partnership. A person includes someone under the age of 16.
A child over the age of 12 is deemed to be capable of instructing a solicitor. With a younger child you must form a view as to whether they are capable of understanding what is happening and of giving instructions. A child under the age of six would be unlikely to be capable of giving instructions.
Someone who does not have the capacity to give instructions cannot be admitted to advice and assistance.
In terms of regulation 6(1) a client who for good reason cannot make the application in person can authorise some other person to apply on their behalf.
In terms of section 6 of the Act, advice and assistance may be given only to “a person”. This term is defined in section 11 of the Act as excluding a body corporate or unincorporate, except where the body is acting in a representative, fiduciary or official capacity.
Advice and assistance cannot, therefore, 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.
You cannot grant an application for advice and assistance where the applicant has other rights or facilities making it unnecessary for them to receive advice and assistance, or a reasonable expectation of getting financial or other help from another body. You must therefore ask the client whether they have, for example
If you consider the applicant does have those other rights or facilities, or a reasonable expectation of receiving help from another body, you cannot grant advice and assistance.
However, we can allow you to proceed to provide advice and assistance in these circumstances if we consider there is a special reason for doing so. For example, the applicant may be able to give satisfactory reasons, such as conflict of interest or previous unsatisfactory dealings with the solicitor, why they do not wish a solicitor nominated by the other body, such as a motoring organisation or trade union, to help them.
If we refuse authority for the grant of advice and assistance, you can ask us, in writing, to review the decision.
Section amended April 2007
Before you can grant advice and assistance (either standard advice and assistance or a diagnostic interview), you must be satisfied that they are eligible for advice and assistance, with or without a contribution (regulation 8).
You can only start to give your client advice and assistance in terms of the Act and regulations, and to charge for this work, when you are satisfied on all the relevant criteria, including financial eligibility. Until you are satisfied that giving advice and assistance is appropriate, you cannot carry out any chargeable work– we will abate any work claimed in an account. It makes no difference that this may all take place on the same day. Since it is the nominated solicitor who grants advice and assistance, it follows that there is no advice and assistance until the nominated solicitor has satisfied him or herself on all relevant criteria.
If you give a diagnostic interview, and we later authorise standard advice and assistance, in effect the diagnostic interview is substituted by the standard advice and assistance. Work under the standard advice and assistance is, therefore, chargeable from the time you granted the diagnostic interview.
If, however, the case is one of the other categories for which you have to apply to us for approval to give advice and assistance – for example, if another solicitor has previously given advice and assistance to the client on the same subject matter – work becomes chargeable on the date that we grant advice and assistance.
Section amended April 2007
You cannot charge for time spent getting information from an applicant about eligibility, assessing financial eligibility, obtaining verification of financial eligibility or completing an online advice and assistance application, since this pre-dates the nominated solicitor being satisfied about the applicant’s financial eligibility. If we have been asked to authorise a transfer of advice and assistance to a second solicitor, the effective date is the date when we give that authority.
Only a solicitor who is entitled to undertake legal work in his or her own name can grant advice and assistance.
Any non-qualified person who is interviewing an applicant for advice and assistance must refer to these notes for guidance.
A person who is not a solicitor
Only a solicitor entitled to undertake legal aid work can grant advice and assistance. That solicitor must also carry out the assessment of whether a client qualifies financially.
a) Provision of advice and assistance to a child
(i) How old is the child? If the child is under 12 and applying themselves, non-qualified staff should refer to a solicitor to decide if the child can give instructions.
B) Deprivation of resources
Has the applicant disposed of any resources, or converted any part of those resources into a different form of resource? Non-qualified staff should refer to a solicitor for a decision on whether these resources should be taken into account.
c) Married or cohabiting applicants
(a) Is the applicant married, in a civil partnership or cohabiting?
Regulation 7 of the Advice and Assistance (Scotland) Regulations 1996 says that, “For the purposes of section 42 of the Act, two persons living together as husband and wife or in a relationship which has the characteristics of the relationship between husband and wife except that the persons are of the same sex shall be treated as if they were spouses of each other”. The practical effect of this is that Regulation 7 covers spouses and civil partners and those living together in relationships with the characteristics of spouses or civil partners.
In this guidance we will use the term “partner” to mean an applicant’s husband or wife, civil partner, or any person that the applicant is living with in a relationship which which has the characteristics of the relationship between husband and wife or spouses or civil partners.Regulation 7of the Advice and Assistance (Scotland) Regulations 1996 requires that when assessing an applicant’s financial eligibility and the amount of any contribution that the applicant can be asked to pay towards the cost of the case, if the applicant is married or living with a partner as if married, even if the person they are living with is of the same sex, the resources of the couple must be aggregated unless:
In order for the resources of a partner to be disregarded on the grounds that the partner holds a contrary interest in the case it must be shown that the partner is seeking a different outcome from the applicant. This is not the same as where a partner may have a different interest in the proceedings, for example, where the partner may be called upon to give evidence which is detrimental to themselves or to the applicant’s case but nonetheless he/she seeks the same outcome as the applicant.
The regulation also allows that where the applicant and partner are no longer living together and have separated then aggregation need not apply. In considering if aggregation should not apply for this reason it must be shown that not only is there a physical separation but also that the relationship is at an end.
Some periods of physical separation take place without ending a relationship. For example:
In each of these examples, which do no constitute an exhaustive list, couples may consider their relationship to be on-going despite their physical separation.
In deciding if aggregation of resources should take place, particularly where the couple have not entered into a form of marriage or civil partnership, there are several factors which will be used to determine if the applicant is in a relationship which warrants aggregation. Essentially what is to be established falls under two broad headings: do the parties live together; and if so, do they do so in the manner of spouses or civil partners. As noted above it is not always the case that the parties live together permanently.
The principal factors which we will take into account in deciding if the parties live together and do so as if spouses or civil partners are:
This list is by no means exhaustive and it is not necessary for all of these factors to be present before a decision will be arrived at that aggregation is appropriate. Each case will be considered in accordance with its own facts.
d) Applicant with more than one dwelling house
(i) Does the applicant have an interest in a dwelling house other than the main one in which they live?
(ii) If the answer to i) is yes, how much money could they get by borrowing money on the security of the second house? Non-qualified staff should refer to a solicitor to decide how much capital to include in the assessment.
The applicant may not be able to answer all these questions at the first meeting. They may have documentation which will help the solicitor confirm the position. If that is the case, they should be asked to send in the appropriate documents to the solicitor. Advice and assistance cannot be granted until the solicitor is satisfied the applicant is eligible.
The time spent in getting the information in paragraph 1.34 is not chargeable under advice and assistance. Advice and assistance only begins when the solicitor grants it.
Amended April 2007