Handbooks Index

 

Part 3: Advice and Assistance


Chapter 3

Assistance by way of representation in civil proceedings 

3.1 General scope of ABWOR in civil proceedings
3.2 Failure to pay a fine or other sum or to obey an order of the court
3.3 Proceedings requiring our prior approval before granting ABWOR
3.4 Petitions for appointment of an executor
3.5 Petitions before the First-tier and Upper Tribunal
3.6 Proceedings before the First-tier and Upper Tribunal
3.7 Entitlement to ABWOR in civil proceedings
3.8 Responsibility of solicitor
3.9 Need for prior Board authority for ABWOR in some cases
3.10 Employment tribunal
3.11 First-tier Tribunal for Scotland
3.12 First-tier and Upper Tribunal
3.13 Recovery proceedings
3.14 Limit of authorised expenditure

3.15 Normal increase procedure applies

3.16 Property recovered or preserved in Upper Tribunal proceedings

 

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Unless otherwise stated, in this section "the Act" or "the 1986 Act" means the Legal Aid (Scotland) Act 1986, “the A&A regulations” means the Advice and Assistance (Scotland) regulations 1996 and “the regulations” means the Advice and Assistance (Assistance by Way of Representation) (Scotland) Regulations 2003.


3.1 General scope of ABWOR in civil proceedings

 Assistance by Way of Representation (ABWOR) is defined in section 6(1) of the 1986 Act as

“advice and assistance provided to a person by taking on his behalf any step in instituting, conducting or defending any proceedings

•    before a court or tribunal, or

•    in connection with a statutory inquiry,

whether by representing him in those proceedings or by otherwise taking any step on his behalf (as distinct from assisting him in taking such a step on his own behalf).”

ABWOR is a type of advice and assistance made available under Part II of the Act which enables representation to be provided but only for the proceedings listed in the Advice and Assistance (Assistance by Way of Representation) (Scotland) Regulations 2003.  

Regulation 8(2) of the A&A regulations provides that you should determine whether the subject matter to which advice and assistance concerns a civil, criminal or children’s matter taking into account any guidance issued from time to time by us.

So, the proceedings listed in the ABWOR regulations to be treated as civil matters (either by their nature or in terms of our guidance) are:

Miscellaneous proceedings (under regulation 3)

•    petitions for the appointment of an executor to a deceased person under the Act of Sederunt (Confirmation of Executors) 1964, under regulation 3(b)
•    proceedings before the Mental Health Tribunal for Scotland, under regulation 3(d)
•    disciplinary proceedings before a governor in relation to a prisoner, where the prisoner has been permitted by the governor to be legally represented, under regulation 3(f)
•    civil proceedings arising from a failure by a person to –

o    pay a fine or other sum or
o    obey an order of the court, under regulation 3(j)

•    proceedings before an employment tribunal under regulation 3(m)
•    proceedings before the First-tier Tribunal for Scotland (formerly the functions of the Additional Support Needs Tribunal for Scotland) in accordance with Part 3 of Schedule 17 to the Equality Act 2010, under regulation 3(s)
•    custody appearances under the Protection from Abuse and Matrimonial Homes Act.


First-tier and the Upper Tribunal (Immigration and Asylum)


•    The Immigration and Asylum Chamber of the First-tier Tribunal
•    The Immigration and Asylum Chamber of the Upper Tribunal


First-tier or Upper Tribunal (General)


•    An appeal against a penalty imposed under:

o    Section 60 of the Value Added Tax Act 1994
o    Section 8 of the Finance Act 1994
o    Schedule 24 of the Finance Act 2007
o    Schedule 41 to the Finance Act 2008

•    An appeal against a decision of the Pensions regulator


Upper Tribunal only

An appeal against a decision made under or by virtue of:

o    any of the sections 1 to 5A of the Pensions Appeal Tribunal Act 1943 by a Pensions Appeal Tribunal or the First-tier Tribunal
o    Section 4 of the Vaccine Damage Payments Act 1979
o    Section 20 of the Child Support Act 1991
o    Section 12 of the Social Security (Recovery of Benefits) Act 1997
o    Section 12 or 13 of the Social Security Act 1998
o    Paragraph 6 or 7 of Schedule 7 to the Child Support, Pensions and Social Security Act 1998
o    Section 39 of, or paragraph 3 of Schedule 2 to, the Tax Credits Act 2002
o    Section 158 of the Health and Social Care (Community Health and Standards) Act 2003

o    Section 23 of the Child Trust Funds Act 2004
o    Section 50 of the Child Maintenance and Other Payments Act 2008


First-tier Tribunal for Scotland

•    Functions of the former Additional Support Needs Tribunal, allocated to the Health and Education Chamber

 

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3.2 Failure to pay a fine or other sum or to obey an order of the court

 In civil proceedings arising from a failure to pay a fine or other sum or to obey an order of the court, you can provide ABWOR only where you are satisfied that:

•    it is reasonable in the particular circumstances of the case to provide it, and
•    it is likely the court will deprive the applicant of their liberty.

 See Regulation 12.

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3.3 Proceedings requiring our prior approval before granting ABWOR

Under regulation 13, you need to get our prior approval to provide ABWOR in connection with proceedings before an employment tribunal, the First-tier Tribunal for Scotland, the First-tier and Upper Tribunals (other than for immigration and asylum) and for recovery proceedings in criminal proceedings.  You should seek that approval when you apply for an increase in expenditure.  Before giving such approval, we must be satisfied about certain matters specified in regulation 13.  See paragraphs 3.9 to 3.13 below.

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3.4 Petitions for appointment of an executor

ABWOR covers all work in connection with a petition for the appointment of an executor up to obtaining an extract decree of the appointment but if at any stage the proceedings become opposed, ABWOR must then stop.


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3.5 Proceedings before the First-tier and Upper Tribunal

Tables I and II (below) set out the criteria to be applied, and by whom, in assessing whether ABWOR can be made available.

ABWOR is not available for any First-tier or Upper Tribunal proceedings not listed in these Tables.

You should be satisfied, in the context of regulations 5A and 5B, that the tribunal deciding the case will do so “sitting in Scotland”. This will be obvious in the vast majority of cases.  Our position is that a tribunal is sitting in Scotland where the state-funded client (with their legal representative) is situated in Scotland even though the tribunal, via a video link, is sitting in London.  This is also the position of the tribunal service.

For the avoidance of doubt, “solicitor” is not separately defined in the 1986 Act or regulations and takes on the meaning in the Solicitors (Scotland) Act 1980.  For this reason (and it is solely a payment issue) in terms of section 4 of the 1986 Act we can only pay for a Scottish solicitor.


Table I ( First-tier tribunal)

  

Summary of eligibility tests*

 

 

Tribunal Chamber Proceedings Means test  Merits test Criteria
 First-tier             Immigration and asylum  All  Yes - solicitor supplies standard means test  No  N/A
   Tax  Section 60, Value Added Tax Act 1994  Yes - solicitor supplies standard means test  Yes - Board applies test  Interests of Justice
     Section 8, Finance Act 1994  Yes - solicitor apples standard means test  Yes - Board applies test  Interests of Justice
     Schedule 24, Finance Act 2007  Yes - solicitor applies standard means test  Yes - Board applies test  Interests of Justice
     Schedule 41, Finance Act 2008  Yes - solicitor applies standard means tes  Yes - Board applies test  Interests of justice
   Pensions Regulator  Appeal against a decision of the Pensions Regulator  Yes - solicitor applies standard means test  Yes - Board applies test  Interests of Justice

 

 

 
Table II ( Upper tribunal)

 

Summary of eligibility tests*

 

 

Tribunal Chamber Proceedings for which ABWOR is available Means test Merits test Criteria
Upper Tribunal Immigration and Asylum Appeal, where first-tier tribunal has given permission to appeal Yes - solicitor applies standard means test No N/A
   Immigration and Asylum  Appeal, where first-tier tribunal has not given permission to appeal  Yes – solicitor applies standard means test  Yes – solicitor applies test  Effective participation
   Administrative appeals  Section 4, Vaccine Damage Payments Act 1979  Yes – solicitor applies standard means test  Yes – Board applies test  Effective participation
     Section 20, Child Support Act 1991  Yes – solicitor applies standard means test  Yes – Board applies test  Effective participation
     Section 12, Social Security (Recovery of Benefits)  Yes – solicitor applies standard means test  Yes – Board applies test  Effective participation
     Section 12 or 13, Social Security Act 1998  Yes – solicitor applies standard means test  Yes – Board applies test  Effective participation
     Section 39, or paragraph 3 of Schedule 2 to the Tax Credits Act 2002  Yes – solicitor applies standard means test  Yes – Board applies test  Effective participation
     Section 158, Health and Social Care (Community Health and Standards) Act 2003  Yes – solicitor applies standard means test  Yes – Board applies test  Effective participation
     Section 23 Child Trust Funds Act 2004  Yes – solicitor applies standard means test  Yes – Board applies test  Effective participation
     Section 50, Child Maintenance and Other Payments Act 2008  Yes – solicitor applies standard means test  Yes – Board applies test  Effective participation
   Tax and Chancery  Appeal against a penalty imposed under section 60, Value Added Tax Act 1994  Yes – solicitor applies standard means test  Yes – Board applies test  Interests of Justice
     Appeal against a penalty imposed under section 8, Finance Act 1994  Yes – solicitor applies standard means test  Yes – Board applies test  Interests of Justice
     Appeal against a penalty imposed under Schedule 41 to the Finance Act 2008  Yes – solicitor applies standard means test  Yes – Board applies test  Interests of Justice
     Appeal against a decision of the Pensions Regulator  Yes – solicitor applies standard means test  Yes – Board applies test  Interests of Justice
     Appeal against a decision made under or by virtue of any of sections 1 to 5A of the Pensions Appeal Tribunal Act 1943 by a Pensions Appeal Tribunal or the first-tier tribunal  Yes – solicitor applies standard means test  Yes – Board applies test  Interests of Justice

 

TABLE III (FIRST-TIER TRIBUNAL FOR SCOTLAND)

SUMMARY OF ELIGIBILITY TESTS*

 

Tribunal

 Chamber

Proceedings

 Means test

Merits test

Criteria

 First-tier

 Health & Education Chamber

 

 Yes – solicitor applies standard means test

 Yes – Board applies test

 Effective participation

 

 

3.6 Eligibility for ABWOR

To be eligible for ABWOR, the applicant must be eligible for advice and assistance.  Advice and assistance may be granted for the sole purpose of providing ABWOR, or the grant may start off as no more than advice and assistance and ABWOR provided at a later stage. 

The financial eligibility test does not apply and no contribution is payable by the applicant in connection with ABWOR for

(a)    proceedings before the Mental Health Tribunal for Scotland
(b)    an appearance from custody under section 17 of the Matrimonial Homes (Family Protection) (Scotland) Act 1981 and section 5 of the Protection from Abuse Scotland) Act 2001

recovery proceedings (see paragraph 3.14 below) 

These proceedings are referred to as “prescribed proceedings” in the regulations – see regulation 9.

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3.7 Entitlement to ABWOR in civil proceedings

3.8 Responsibility of solicitor

It is the solicitor who admits a client to advice and assistance (and ABWOR) and it is your responsibility to decide not only whether the proceedings are within the scope of ABWOR but also whether the client is financially eligible for advice and assistance, subject to paragraph 3.6 above.  If you are satisfied the client is eligible and that ABWOR is available for the proceedings, you can start work at once.  Unless you need our prior authority, you should simply intimate the grant of ABWOR (or if you have already intimated a grant of advice and assistance amend the online application to show that you are now providing ABWOR). 

Regulation 22 of the A&A regulations provides that where we find that the provision of advice and assistance (including ABWOR) was not (wholly or partly) in accordance with the relevant rules applying by virtue of the 1986 Act or was otherwise unjustified in the circumstances of the case (including by reason of inadequate assessment or verification of any relevant factor), we may withhold payment or recover such payment as has been made.

In considering whether or not the provision of ABWOR was in accordance with the relevant rules, we may have regard to any guidance we have issued about the application of those rules. You should take care in applying the relevant tests, where applicable.  If a financial eligibility test applies take care to obtain and keep financial or other documentation concerning the assessment of your client’s circumstances where practicable.

Schedule 2, paragraph 2A.(2) of the A&A regulations states: “The solicitor must, for the purpose of ascertaining the capital and income of the person concerned–

(a)      so far as necessary and practicable, obtain from that person financial or other documentation; and
(b)      take such other reasonable steps as are necessary.”

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3.9 Need for prior Board authority for ABWOR in some cases

Our prior approval, in terms of regulation 13, is required as a pre-condition of providing ABWOR for certain proceedings.

While there is no regulatory provision for a review of a refusal we are prepared to reconsider any refusal if you provide further information.
 

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3.10 Employment tribunal

You must obtain our prior approval to provide ABWOR for proceedings before an employment tribunal.  In considering whether to grant approval we must apply an effective participation test, and be satisfied that:

(a)    the case is arguable
(b)    it is reasonable in the particular circumstances of the case to make ABWOR available, and
(c)    the case is too complex to allow the applicant to present it to a minimum standard of effectiveness in person. 


The factors we have to take into account in considering whether the case is too complex include

(a)    determining the issue may involve procedural difficulty or consideration of a substantial question of law, or of evidence of a complex or difficult nature, and
(b)    the applicant may be unable to understand the proceedings or to state their own case because of their age, inadequate knowledge of English, mental illness, other mental or physical disability, or otherwise. 


These factors are not exhaustive of those that we may consider in deciding whether the case is too complex to allow the applicant to present it adequately themselves. If additional factors are present, we may take them into account.

 In any request for approval, you should address these issues in appropriate detail.  Part 3, Chapter 5.64 to 5.66 of the Civil Handbook sets out the criteria for granting ABWOR for an employment tribunal.

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3.11 First-tier Tribunal for Scotland

You must obtain our prior approval to provide ABWOR for proceedings before the First-tier Tribunal for Scotland which has taken over the functions of the Additional Support Needs Tribunal, allocated to the Health and Education Chamber. See Table III at paragraph 3.5 above.

In considering whether to grant approval we must apply an effective participation test and be satisfied that:

(c)    the case is arguable
(d)    it is reasonable in the particular circumstances of the case to make ABWOR available, and
(e)    the case is too complex to allow the applicant to present it to a minimum standard of effectiveness in person. 


The factors we have to take into account in considering whether the case is too complex include

(f)    determining the issue may involve procedural difficulty or consideration of a substantial question of law, or of evidence of a complex or difficult nature, and
(g)    the applicant may be unable to understand the proceedings or to state their own case because of their age, inadequate knowledge of English, mental illness, other mental or physical disability, or otherwise.
  


These factors are not exhaustive of those that we may consider in deciding whether the case is too complex to allow the applicant to present it adequately themselves. If additional factors are present, we may take them into account.

You should address these issues in appropriate detail.

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3.12 First-tier and Upper Tribunal

You must obtain our prior approval to provide ABWOR for proceedings before the First-tier Tribunal and the Upper Tribunal, with the exception of immigration and asylum proceedings before either Tribunal.  Table I and Table II at paragraph 3.6 above set out the tests to be applied in assessing whether ABWOR should be made available.  The tests are either an effective participation test or an interests of justice test.

Effective Participation

When assessing the effective participation test we need to be satisfied that the tribunal deciding the case will do so sitting in Scotland; and


(a)    The case is arguable;
(b)    It is reasonable in the particular circumstances of the case that assistance by way of representation be made available; and
(c)    The case is too complex to allow the applicant to present it to a minimum standard of effectiveness in person.


The factors to be taken into account in determining whether (c) applies include:


(i)    The determination of the issue may involve procedural difficulty or consideration of a substantial question of law, or of evidence of a complex or difficulty nature;

(ii)    The applicant may be unable to understand the proceedings or to state their own case because of age, inadequate knowledge of English, mental illness, other mental or physical disability, or otherwise.


Interests of Justice

When assessing the interests of justice test we need to be satisfied that the tribunal deciding the case will do so sitting in Scotland; and


(i)    In all the circumstances of the case it is:


-    In the interests of justice; and
-    Reasonable that advice and assistance by way of representation is made available.


The factors to be taken into account in determining whether the interests of justice test is met include:


(a)    The determination of the issue may involve procedural difficulty or consideration of a substantial question of law, or of evidence of a complex or difficult nature;
(b)    The applicant may be unable to understand the proceedings or to state their own case because of age, inadequate knowledge of English, mental illness, other mental or physical disability, or otherwise.


These factors are not exhaustive of those that we may consider in deciding whether the case is too complex to allow the applicant to present it adequately themselves. If additional factors are present, we may take them into account.

In any request for authority, you need to address these issues in detail.
 

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3.13 Recovery proceedings

 “Recovery proceedings”, as defined in the regulations, means proceedings relating to an application for an order for recovery of documents, in connection with criminal proceedings, in which –

•    the documents sought include medical or other sensitive documents relating to the client
•    the application has been intimated to the client, and
•    the client wishes to oppose recovery of documents on the basis that the granting of the order would infringe their rights under Article 8 of the European Convention of Human Rights

ABWOR

Although the ABWOR which is available is criminal ABWOR, the regulations make special provision that any solicitor registered to provide criminal, civil or children’s legal assistance may undertake the work in circumstance where you are approached by a client who seeks to oppose the order, and the above circumstances apply.  

In addition, solicitors who are not on these registers can also do this work, and should contact the Board’s Receipts and Payments section on 0131 226 1968 to obtain authorisation to provide ABWOR in these cases.
In cases where you intend to provide representation, you should make an ABWOR application using the legal aid online (LAOL) system. When making an ABWOR application on LAOL, you should select the new ORD category and no financial details will be required. You will simply be required to answer the effective participation questions below.


Eligibility

There is no financial eligibility test and no liability for a contribution from the client, but you must obtain our prior approval before providing ABWOR. In considering whether to grant approval we are required by the regulations to apply an effective participation test, requiring to be satisfied that:

(a)    The case is arguable;
(b)    It is reasonable in the particular circumstances of the case that assistance by way of representation be made available; and
(c)    The case is too complex to allow the applicant to present it to a minimum standard of effectiveness in person.


The factors to be taken into account in determining whether (c) applies include:


(i)    The determination of the issue may involve procedural difficulty or consideration of a substantial question of law, or of evidence of a complex or difficulty nature;


(ii)    The applicant may be unable to understand the proceedings or to state their own case because of age, inadequate knowledge of English, mental illness, other mental or physical disability, or otherwise.

Advice and assistance

If for any reason ABWOR is not available in terms of the above arrangements or an application is refused, standard advice and assistance may still be made available to a client if they are financially eligible using the current advice & assistance Keycard.   The normal conditions applicable to advice and assistance apply.

In these circumstances the client would be need to be assessed for financial eligibility on the standard basis, and may similarly be liable for a contribution.

Again, ORD should be used in all applications for recovery proceedings.  

Initial limit of authorised expenditure

Where it has been determined that the client could not be expected to participate effectively in the proceedings without representation, ABWOR for recovery proceedings is subject to an initial limit of expenditure £150.00.
Advice and assistance for recovery proceedings would be subject to an initial limit of £35.00.

Any application for an increase to that initial sum should be submitted in the usual way.
 

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3.14 Limit of Authorised expenditure

The initial limit of authorised expenditure for most civil ABWOR matters is £95 although a £180 limit applies for Parole Board matters.  

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3.15 Normal increase procedure applies

The normal procedure for getting an increase in authorised expenditure in an advice and assistance case applies also in an ABWOR case.  Civil ABWOR matters are generally chargeable on a detailed fee basis. 

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3.16 Property recovered or preserved in Upper Tribunal proceedings

Regulation 16(2)(m) of the A&A regulations provides that any property recovered or preserved for the client in respect of advice and assistance or ABWOR in connection with proceedings before the Upper Tribunal is exempt. A solicitor’s right to prior payment of fees and outlays under section 12 of the Act does not apply to any money paid in connection with proceedings before the Upper Tribunal consisting of an appeal made under or by virtue of:

•    any of sections 1 to 5A of the Pensions Appeal Tribunal Act 1943 by a Pensions Appeal Tribunal or the First-tier Tribunal;
•    section 4 of the Vaccine Damage Payments Act 1979;
•    section 20 of the Child Support Act 1991;
•    Section 12 of the Social Security (Recovery of Benefits) Act 1997;
•    section 12 or 13 of the Social Security Act 1998;
•    paragraph 6 or 7 of Schedule 7 to the Child Support, Pensions and Social Security Act 2000;
•    section 39 of, or paragraph 3 of Schedule 2 to, the Tax Credits Act 2002;
•    section 158 of the Health and Social Care (Community Health and Standards) Act 2003;
•    section 23 of the Child Trust Funds Act 2004;
•    section 50 of the Child Maintenance and Other Payments Act 2008.


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