Handbooks Index

 

Part 3: Advice and Assistance


Chapter 5

Increases for different types of case under A&A and ABWOR

 

Part 2- Non-templated increases


5.2 Anti-social behaviour orders (ASBOs)
5.3 Asylum
5.4 Asylum appeals
5.5 Bonds of caution in executries
5.6 Caveats
5.7 Child abduction – applications under the Hague Convention
5.8 Streamlined procedure
5.9 Defending action under the Convention
5.10 Appeals
5.11 Child Support Agency and the Child Support Act 1991
5.12 Child Support Agency
5.13 Appeal procedures
5.14 Actions of illegitimacy or non-parentage
5.15 - 5.22 Children’s hearings and appeals – Children (Scotland) Act 1995 Part II
5.23 Applying for civil legal aid
5.24 Conveyancing
5.25 Conveyancing – transfer of family home between spouses, cohabitees or civil partners on separation, divorce or dissolution of civil partnership
5.26 Criminal injuries compensation claims
5.27 Appeals
5.28 Crofting
5.29 Rent reviews
5.30 Resumption of crofting land
5.31 Access rights
5.32 Rights to purchase crofts
5.33 Sub-lets
5.34 Acquisition by cottar of holding
5.35 Crofting land
5.36 Decrofting applications
5.37 Apportionment of common grazings
5.38 Succession to crofts
5.39 Bad husbandry
5.40 Curators ad litem
5.41 Diligence
5.42 Divorce, dissolution of civil partnership and family matters
5.43 Family (divorce/dissolution of civil partnership) – financial assets over £50,000, and issues to resolve involving children of the relationship
5.44 Family (divorce/dissolution of civil partnership) – financial assets over £50,000
5.45 Family (divorce/ dissolution of civil partnership) – financial assets of £50,000 or less and issues to resolve involving children of the relationship
5.46 Family (divorce/ dissolution of civil partnership) – financial assets of £50,000 or less and no issues to resolve involving children of the relationship
5.47 Divorce/ dissolution of civil partnership – simplified procedure
5.48 Divorce/ dissolution of civil partnership – one year’s separation
5.49 Divorce/ dissolution of civil partnership – two years’ separation
5.50 Divorce/ dissolution of civil partnership – unreasonable behaviour
5.51 Divorce – adultery
5.52 Divorce/dissolution of civil partnership – issue of an interim gender recognition certificate
5.53 Divorce/dissolution of civil partnership – ancillary craves
5.54 Separation
5.55 Contact and residence

5.55A Supervised and supported contact

5.55B Parenting apart
5.56 Minutes of agreement
5.57 Adoption
5.58 Declarator of parentage
5.59 Assumption of parental rights or responsibilities
5.60 Aliment
5.61 Aliment – enforcement
5.62 DNA fingerprinting
5.63 Child Support Agency involvement
5.64 Employment tribunals
5.65 Employment tribunals – ABWOR for representation
5.66 The criteria for granting ABWOR
5.67 Appropriate increases in authorised expenditure
5.68 Employment of counsel
5.69 Where authority is granted
5.70 Where authority is refused
5.71 European agreement on the transmission of applications for legal aid
5.72 European Court of Human Rights
5.73 Executry
5.74 Failure to obtemper court orders
5.75 Fatal Accident Inquiries
5.76 Guardianship
5.77 Housing
5.78 Housing benefit
5.79 Appeal against decision of the Independent Appeal Service
5.80 Eviction
5.81 Dampness and housing repair claims
5.82 Interdict
5.83 Interdict against abuse
5.84 Other interdicts
5.85 Breach of interdict
5.86 Judicial review(including judicial review of Board decisions)
5.87 Mental Health (Care and Treatment)(Scotland) Act 2003
5.88 Naturalisation as a British citizen
5.89 Non-harassment orders
5.90 Payment actions
5.91 Pensions
5.92 Pension splitting
5.93 Recovery of heritable property (mortgage rights)
5.94 Reparation
5.95 Personal injuries – claim for damages between £3,000 and £10,000
5.96 Personal injuries – claim for damages exceeding £10,000
5.97 Reparation – non “templated” increases
5.98 Beat knee
5.99 Defective equipment
5.100 Dyslexia
5.101 E-coli and other food poisoning
5.102 Hepatitis C infections
5.103 Industrial deafness
5.104 Injuries at work
5.105 Post-traumatic stress disorder
5.106 MRSA
5.107 Medical negligence
5.108 Other types of professional negligence
5.109 Tobacco claims
5.110 Vibration white finger
5.111 Reparation – drugs-related cases
5.112 Steroids
5.113 Vaccine damage
5.114 Sexual offence prevention order
5.115 Small claims
5.116 Social security
5.117 Department for Work and Pensions decision
5.118 VAT tribunals
5.119 Watching brief
5.120 Welfare benefit analysis
5.121 Wills
5.122 Power of Attorney
5.123 Home/Hospital/Prison Visits

 

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Part 2 of this chapter explains what information you need to send us for certain categories of case where templates are not available. However, this does not exclude other categories of case – we will consider each of these on their own merits.

Where the work is not covered by one of the templates, or the increase you are seeking is higher than the template allows, or if you prefer for some other reason not to use a template, you must in all cases give us full details of

We do not give a particular category of case a ceiling beyond which we will not go – however, do not always expect to get an increase to the level you ask for.

5.2 Anti-social behaviour orders (ASBOs)

For an increase for this topic we strongly recommend you use template 1.

5.3 Asylum

For an increase for this topic we strongly recommend you use template 2.

We will also allow an increase where you can show it is necessary to attend with a client at any interview with the IND or instruct English agents where the interview takes place in England.

5.4 Asylum appeals

For an increase for this topic we strongly recommend you use template 3.

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5.5 Bonds of caution in executries

Where an individual dies without leaving a will and the court appoints an executor to administer the estate, the executor may require a bond of caution. Bonds of caution are not required in small estates where the value of the estate is £30,000 or less. In addition, bonds of caution are not required where the whole estate is passing to a surviving spouse to meet their legal and prior rights.

The bond of caution provides indemnity to any beneficiaries of the estate if there is any error or maladministration by the executor.

If you wish to get funding under advice and assistance for the cost of the premium, you must ask for an increase in authorised expenditure.

Before we can consider any request for an increase, we need the following information:

In the vast majority of cases, we would expect the solicitor or other parties involved in winding up the estate to meet the costs of the premium for the bond of caution. If this is not possible, you must give us full reasons why not to allow us to consider whether it would be reasonable to allow an increase in authorised expenditure.

For information on bonds of caution for other matters, see Part IV paragraphs 4.85 to 4.87.

5.6 Caveats

An increase will not normally be necessary. You must give full reasons if you believe that an increase is necessary and reasonable.

5.7 Child abduction – applications under the Hague Convention

For an increase for this topic we strongly recommend you use the templates.

5.8 Streamlined procedure

For an increase for this topic we strongly recommend you use template 4.

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5.9 Defending action under the Convention

The normal rules of dealing with increases and legal aid applications apply to applications for legal aid to defend actions under the Convention.

For an increase for this topic we strongly recommend you use template 5.

5.10 Appeals

Someone may apply for legal aid to appeal (or to oppose an appeal) to the Inner House of the Court of Session or the Supreme Court. If they were granted legal aid as the original petitioner in the case, we do not need to consider their means and they do not need to pay a contribution. However, we do need to consider probable cause and reasonableness and it will be necessary to intimate the application to the opponent.

For such an application for legal aid we need –

For an increase for this topic we strongly recommend you use template 6.

5.11 Child Support Agency and the Child Support Act 1991

5.12 Child Support Agency

Usually, the initial £95 should be enough for you to deal with all matters arising from an individual’s involvement with the Child Support Agency.

5.13 Appeal procedures

An appeal can be made to the Child Support Commissioner, on a point of law only. Civil legal aid can be made available for such appeals. In certain circumstances, an appeal can be made to the Court of Session or the Court of Appeal. Civil legal aid can be made available for cases directed to the Court of Session, but not for the Court of Appeal.

For an increase for this topic we strongly recommend you use template 7.

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5.14 Actions of illegitimacy or non-parentage

Individuals raising actions of illegitimacy or non-parentage can apply for advice and assistance and civil legal aid in the normal way.

5.15 Children’s hearings and appeals – Children (Scotland) Act 1995 Part II

NOTE
Paragraphs 5.15 to 5.22 referred to children’s legal assistance, and were removed in July 2008. For children’s legal assistance, you should refer to the
Scottish Legal Assistance Handbook for children’s hearings and associated court proceedings

5.23 Applying for civil legal aid

We may grant an increase to enable you to complete and submit a civil legal aid application.

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5.24 Conveyancing

For cases about the transfer of the family home between spouses, civil partners or cohabitees on separation, divorce or dissolution of civil partnership where no payment is changing hands, you should refer to paragraph 5.25.

Before agreeing to the use of public funds for conveyancing, we must be persuaded there is a good reason to do so. Where an applicant is entering a voluntary transaction for the purchase or sale of heritable property, this is unlikely. Applicants should generally be expected to take the cost of conveyancing into account before deciding to continue with an entirely voluntary transaction.

There are, however, circumstances where we would, in general, consider it appropriate to grant an increase:

Where we allow an increase to cover conveyancing costs, the following may be included

You should provide specific details of these costs, having regard to the charges made by local authorities and searchers and taking into account the dues of registration which will be payable for the property involved. If you do not provide a breakdown of the likely costs in the individual situation, we may continue the request for this information.

Certain expenses are specifically excluded:

If these form part of any request for an increase, we will refuse them.

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5.25 Conveyancing – transfer of family home between spouses, cohabitees or civil partners on separation, divorce or dissolution of civil partnership

Before agreeing to the use of public funds for conveyancing, we must be persuaded there is a good reason to do so. However, it is generally reasonable to grant an increase –

In each request we need information not only about the conveyancing costs which are to be incurred but also about –

An appropriate increase will cover

You should provide specific details of these costs, having regard to the charges made by local authorities and searchers and taking into account the dues of registration which will be payable for the property involved. If you do not provide a breakdown of the likely costs in the individual situation, we may continue the request for this information.

Certain expenses are specifically excluded:

Payments being made by the applicant

In cases where the applicant is making a payment for the transfer, as well as the information shown above we need to know

Costs of the person transferring the property

We sometimes receive applications for an increase to cover the costs of the person transferring the property. These costs are much more limited than the costs incurred by the person receiving the transfer. We need to know whether –

Generally, we will consider the applicant’s personal circumstances, the benefit to the person to whom the property is to be transferred and any children, and the benefit to the Fund of settling matrimonial or civil partnership disputes by agreement.

We will generally allow an increase of £250 to cover your work, with a sum sufficient to cover the outlays normally borne by the person transferring the property such as local authority reports and searches. As with increase applications for the conveyancing costs of the person to whom the property is to be transferred, you should provide a full breakdown of the costs to be incurred. If you do not, we may continue the request for this information.

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5.26 Criminal injuries compensation claims

The initial limit of authorised expenditure will usually be enough to enable you to complete the criminal injuries application forms and submit them to the Criminal Injuries Compensation Authority (CICA). Statements are not required to support an application to the CICA, as there is additional space to provide further information on the application form. The CICA will normally get any reports considered necessary and you will not have to be involved in this.

There may, however, be situations where either the CICA requires you to get reports and submit them for consideration or, in the best interests of the applicant, separate medical or other evidence is needed. Where you ask for an increase in authorised expenditure for this

Any increase in authorised expenditure granted in such circumstances will reflect the cost of the work to be carried out or the cost of the reports.

NOTE
This section was slightly amended in March 2009

5.27 Appeals

You may make a fresh grant of advice and assistance to cover any work to be carried out on an appeal.

For an increase for this topic we strongly recommend you use template 9.

If you choose not to use the template, your request for an increase in authorised expenditure should

5.28 Crofting

5.29 Rent reviews

The Land Court issues a list of decisions on rentals to help with rent review cases. You should be able to offer guidance and advice on such matters without any great difficulty. You will not normally need an increase for this.

5.30 Resumption of crofting land

For an increase for this topic we strongly recommend you use template 10.

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5.31 Access rights

For an increase for this topic we strongly recommend you use template 11.

5.32 Rights to purchase crofts

For an increase for this topic we strongly recommend you use template 12.

5.33 Sub-lets

Minimal advice is needed to deal with sub-lets and advice is, in any case, available from the Crofters Commission. We will not normally grant an increase.

5.34 Acquisition by cottar of holding

For an increase for this topic we strongly recommend you use template 13.

5.35 Crofting land

For an increase for this topic we strongly recommend you use template 14.

5.36 Decrofting applications

For an increase for this topic we strongly recommend you use template 15.

5.37 Apportionment of common grazings

For an increase for this topic we strongly recommend you use template 16.

5.38 Succession to crofts

For an increase for this topic we strongly recommend you use template 17.

5.39 Bad husbandry

For an increase for this topic we strongly recommend you use template 18.

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5.40 Curators ad litem

In an action where the sheriff appoints a curator ad litem to a child, at the first instance, unless the court directs otherwise, the pursuer is responsible for the curator’s fees and outlays. These can be incurred during the period from the curator’s appointment until

(a) they lodge a minute stating that they do not intend to lodge defences or enter the process

(b) they decide to instruct the lodging of defences or a minute adopting defences already lodged, or

(c) their appointment is discharged before either (a) or (b) occurs.

Requests for increases to cover the costs of initial investigation and submission of reports by the curator will not be granted.

For an increase for this topic we strongly recommend you use template 19.

5.41 Diligence

A grant of civil legal aid can generally be used for any necessary diligence arising from an action. However, advice and assistance is available to carry out certain forms of diligence. These are service of a charge for payment, poinding, sale, arrestment and inhibition. Advice and assistance is not available for an action of furthcoming following an arrestment, civil imprisonment, sequestration, or adjudication following an inhibition.

Before granting an increase, we will consider the following:

If you intend to use advice and assistance, rather than civil legal aid, in any of these situations you need to give us good reasons for this.

A decree for aliment may have to be registered under maintenance orders legislation in a court for another part of the UK or in the court of a foreign state. We may grant you a small increase so you can undertake the administrative procedure for this in Scotland. Once the decree has been registered outwith Scotland, you cannot take further action to enforce it under advice and assistance.

An applicant living abroad who seeks to enforce a maintenance order in Scotland under the Maintenance Orders (Reciprocal Enforcement) Act 1972 may not have to complete the financial part of the advice and assistance form if they have an exemption certificate from the responsible authority in the foreign country concerned (see Part IV paragraphs 5.3 to 5.5).

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5.42 Divorce, dissolution of civil partnership and family matters

5.43 Family (divorce/dissolution of civil partnership) – financial assets over £50,000, and issues to resolve involving children of the relationship

For an increase for this topic we strongly recommend you use template 20.

5.44 Family (divorce/dissolution of civil partnership) – financial assets over £50,000

For an increase for this topic we strongly recommend you use template 21.

5.45 Family (divorce/ dissolution of civil partnership) – financial assets of £50,000 or less and issues to resolve involving children of the relationship

For an increase for this topic we strongly recommend you use template 22.

5.46 Family (divorce/ dissolution of civil partnership) – financial assets of £50,000 or less and no issues to resolve involving children of the relationship

For an increase for this topic we strongly recommend you use template 23.

5.47 Divorce/ dissolution of civil partnership – simplified procedure

The initial expenditure of £95 is enough for this type of divorce or dissolution unless there are exceptional circumstances. A marriage certificate or civil partnership certificate that needs translating or difficulties in tracing the opponent are examples we have seen in the past.

If there are exceptional circumstances then an increase to £300 to £400 may be appropriate. We will refuse any request that gives no obvious reason for the increase.

NOTE
This section was slightly amended in February 2008

5.48 Divorce/ dissolution of civil partnership – one year’s separation

An increase to £450 would be considered reasonable to enable an application for legal aid to be made.

We would expect to see:

5.49 Divorce/ dissolution of civil partnership – two years’ separation

An increase to £450 would be reasonable to enable an application for legal aid to be made.

We would expect to see:

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5.50 Divorce/ dissolution of civil partnership – unreasonable behaviour

An application for legal aid will be needed and we will expect to see –

An increase to £500 to £600 would be considered reasonable to enable such an application to be made. If a GP’s report is needed, an additional increase of £50 to £100 would be reasonable.

5.51 Divorce – adultery

It may not be possible to have eyewitness accounts of the adultery but we would be looking for the following in any application for legal aid –

and

The costs of getting statements from the opponent and paramour that they are committing adultery would be a reasonable expense under advice and assistance, as would getting a report from an enquiry agent. However, before granting an increase to get such a report, we need to know –

(There is normally no need to involve more than one enquiry agent. Most courts will accept the evidence of one agent. More than one might be needed if, for example, the opponent or paramour was expected to be violent when confronted, or the particular court did not accept evidence from one agent.)

An agent’s report would be around £250 and the cost of submitting the application for legal aid without the report would be around £400. We may, therefore, grant an increase to somewhere in the range of £450 to £700.

Adultery is not available as a ground for dissolution of a civil partnership. We will not, therefore, grant increases for such cases, unless the application is to defend an action purportedly raised by the opponent on that ground,

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5.52 Divorce/dissolution of civil partnership – issue of an interim gender recognition certificate

An increase to £400 would be considered reasonable to enable an application for legal aid to be made.

5.53 Divorce/dissolution of civil partnership – ancillary craves

The evidence in support of such craves, if they are needed, may be included in the application for legal aid, but an increase might still be needed to cover work undertaken on the ancillary craves. There may be cases where, for example, a report from a doctor or psychologist in support of a crave for a residence order is needed. As well as any increase granted for the main divorce/dissolution proceedings, you may need an increase to cover the additional costs that will be incurred in including information about the craves being sought in the statements.

5.54 Separation

An application for legal aid will be necessary and we will look for the same information as for the divorce/dissolution application.

We would consider an increase to £500 reasonable to enable an application for civil legal aid to be made.

5.55 Contact and residence

For an increase for this topic we strongly recommend you use template 24.

5.55A Supervised and supported contact

The cost of paid for supervised contact may be allowed under advice and assistance where we are satisfied that it may help to resolve a dispute over contact without the need for litigation. You should ask us for funding to cover the cost of supervised and/or supported contact under advice and assistance where appropriate to help resolve a dispute.

Information we have from contact centres and from court ordered sessions suggests that 10 supervised sessions are generally sufficient to show if contact is working well and can move on from being supervised to being supported or able to take place without supervision of any sort.  While we cannot fund this work indefinitely and at some point, contact will need to move from a centre this early support provides an early means of establishing if contact can work with initial sessions taking place in a safe environment to allow all parties to be assured that contact can work even if there have been issues between the parties in the past or if there has been a gap since contact was last exercised.

Requests for increases should:

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5.55B Parenting apart

Relationships Scotland run Parenting Apart information sessions for parents who are going through the process of separation or divorce or who are in dispute over contact arrangements.  The sessions help parents to understand the process of separating, what their children need from them when they are living apart and how to work together and put their children’s needs first.  They help parents to see the situation from their children's perspective.  Parenting Apart is normally delivered as a one-off small group workshop with a mix of mums and dads lasting about 3 hours.  It can also be delivered one-to-one.  Each parent attends a different session.  Independent evaluation of the Parenting Apart programme shows that parents negotiate more effectively after participating in Parenting Apart.  They make more effective use of the support that family lawyers and other professionals can provide.  Parenting Apart sessions are currently free due to funding from the Scottish Government.  They are available throughout Scotland through Relationships Scotland's family mediation services.  Contact details can be found at www.relationships-scotland.org.uk/find-a-local-service/family-mediaiton-services   More information about the sessions, including frequently asked questions, a short film and resources for parents can be accessed at: www.parentingapart.org.uk 

 

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5.56 Minutes of agreement

For an increase for this topic we strongly recommend you use templates 25 to 27.

Much of the negotiation may concern financial provisions or matters relating to children. You should refer to the guidelines covering pensions (paragraph 5.91), conveyancing (paragraphs 5.24 and 5.25) and ancillary craves (paragraph 5.53).

Where the negotiations relate to a financial settlement, the value of the assets at issue should be taken into account. We will not reject requests for increases simply because a certain level of expenditure has been incurred and it appears the matter should be proceeding to a civil legal aid application. It is preferable if settlements can be negotiated using advice and assistance.
If you give us information to show that the other side is not willing or interested in negotiation, it might not be appropriate to grant a further increase.

5.57 Adoption

For an increase for this topic we strongly recommend you use template 28.

5.58 Declarator of parentage

For an increase for this topic we strongly recommend you use template 29.

Individuals raising actions of non-parentage can apply for advice and assistance and civil legal aid in the normal way – see template for applying for civil legal aid.

Similar principles apply where someone is seeking to disprove parentage, possibly because some legal presumption of parentage applies, or where the Child Support Agency (CSA) is involved.

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5.59 Assumption of parental rights or responsibilities

For an increase for this topic we strongly recommend you use template 30.

5.60 Aliment

For an increase for this topic we strongly recommend you use template 31.

If the arrears are still not paid after diligence, you should ask for a further increase, telling us what further steps of diligence you believe you need to take, and the increase needed. We will consider such applications on their individual merits.

If you hold a decree for aliment, the enforcement provisions are shown in paragraph 5.61.

5.61 Aliment – enforcement

Refer to paragraph 5.41 on diligence.

5.62 DNA fingerprinting

See paragraph 5.58, Declarator of parentage.

For an increase for this topic we strongly recommend you use template 29.

5.63 Child Support Agency involvement

If the CSA is involved, it will offer to pay DNA costs for the alleged father, mother and child. If the alleged father is found to be the father, then the CSA will expect him to pay for the tests, and it may be appropriate to grant an increase to cover him for this.

5.64 Employment tribunals

Civil legal aid is not available for representation at employment tribunals (except for the Employment Appeal Tribunal). However, assistance is available through advice and assistance and/or ABWOR.

For an increase for advice and assistance only, we strongly recommend you use template 32.

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5.65 Employment tribunals – ABWOR for representation

ABWOR may be made available to represent an applicant or respondent in any of the proceedings before an employment tribunal (such as proceedings about dismissal, equal opportunities, racial or sexual discrimination). It may also be made available for proceedings which are initiated in a tribunal in Scotland but then remitted to a tribunal in England, so long as the issue remains one concerning the application of Scots law.

Civil legal aid is not available for representation at employment tribunals. It is available for proceedings before the Employment Appeal Tribunal.

You must get our prior authority before giving ABWOR to your client. ABWOR is requested by applying for an online increase application in authorised expenditure.

If you do not seek authority to give ABWOR to your client, you cannot undertake any step in instituting, conducting or defending proceedings before a tribunal yourself – for example, framing and lodging the initiating document (IT1). You can, however, use advice and assistance to negotiate on behalf of a client and advise on the necessary steps to be undertaken in such proceedings, and/or help them take such steps. (For further information on this and what increases may be granted, see paragraph 5.64.)

5.66 The criteria for granting ABWOR

A request for authority to make ABWOR available should satisfy us that –

The case is arguable

This test has a low threshold but you must still satisfy us there is at least a prima facie case to be taken to the tribunal. You should therefore address such issues as jurisdiction and the legal basis of the proposed claim.

It is reasonable in the particular circumstances of the case that ABWOR be made available.

You should satisfy us that it is reasonable that the applicant should receive public funds to raise or defend proceedings. Examples of the issues which could be taken into account to satisfy this criterion are –

The case is too complex to allow the applicant to present it to a minimum standard of effectiveness in person.

The regulations set out factors we have to consider for this criterion –

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

You must consider this factor with the individual applicant in mind. Is the case before the tribunal so ordinary or straightforward that they could understand it and put forward their own case? Or is it a case where legal argument must be put forward or opposed, or where the evidence of the applicant or opponent is complicated? Is there something in the circumstances of the case relating to law or evidence that makes it special or extraordinary from a lay person’s standpoint, so that in fairness to them a solicitor should be available? Examples of issues which could be taken into account are –

(ii) The applicant may be unable to understand the proceedings or to state his own case because of his age, inadequate knowledge of English, mental illness, other mental or physical disabilities or otherwise.
Normally, we can expect that an applicant would be able to understand the proceedings and to state their own case. We will consider each case on its merits. However, a statement that the applicant is of low intelligence or is a poor communicator is unlikely to be persuasive unless they come into one of the categories listed above. Examples would be if they have a speech impediment, are deaf or dumb, of advanced years or immature, or has only a limited knowledge of English. An argument that the applicant should be allowed to state their case through a solicitor to put them on equal terms with the opponent is unlikely to satisfy this factor.

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.

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5.67 Appropriate increases in authorised expenditure

The initial limit of authorised expenditure in these cases is £95. This is not a separate limit for the work done under ABWOR but is an overall limit applying to any advice and assistance given before ABWOR work begins, as well as the work done under ABWOR.

The normal procedure for getting an increase in authorised expenditure in an advice and assistance case applies whether you make the request before or after authority is given to provide ABWOR.

The basic limit of authorised expenditure is unlikely to be enough, unless you are able to dispose of the matter at a very early stage before any hearing before the tribunal.

For an increase for ABWOR we strongly recommend you use template 33.

5.68 Employment of counsel

In most cases counsel will not be needed but may occasionally where difficult or complex areas of law or evidence are being considered. You can ask for increases –

(For further general information on the employment of counsel see Part III paragraphs 4.1 to 4.4)

5.69 Where authority is granted

You may, however, ask for larger increases where, for instance, the tribunal extends to subsequent days or expert witnesses or reports are involved. There is no upper limit to the increases that may be granted.

5.70 Where authority is refused

Where we refuse authority to give ABWOR or an increase in authorised expenditure, the normal procedure for reconsidering an advice and assistance application applies. There is no limit to the number of requests for reconsideration that may be made.

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5.71 European agreement on the transmission of applications for legal aid

For an increase for this topic we strongly recommend you use template 34.

Most of the European and Scandinavian states have special arrangements to facilitate residents of one state applying for legal aid in another state. The arrangements for this are contained in the European Agreement on the Transmission of Applications for Legal Aid.

Under the Agreement, each state must designate an authority to be responsible for transmitting legal aid applications by any of its residents to the other state in which legal aid is sought, and for receiving applications from foreign residents. The Board is the designated authority in Scotland.

Advice and assistance given in Scotland will only be concerned with the transmission of legal aid applications to the foreign jurisdiction.

When someone resident in Scotland wishes to apply for legal aid in civil, commercial or administrative matters in territory of another state that is party to the agreement, they complete a standard application form. They send this to us, with the same supporting documentation we would expect to see with an application for proceedings in Scotland. We will tell the applicant’s solicitors of any other particular requirements of the country concerned. For instance, France requires a signed affidavit from the applicant about their financial circumstances.

A Scottish solicitor may competently provide a client with advice and assistance on the transmission of an application for legal aid under the Agreement. We will treat a request for an increase in the same way as an increase relating to an application for legal aid in Scotland. Once we receive the application it will be translated, if necessary, and we will send it to the receiving authority in the appropriate country. If that authority asks for additional information, we will ask you to provide us with it and if necessary grant a further increase in authorised expenditure for this.

Advice and assistance cannot cover any later stages of the proceedings, once legal aid has been granted. It cannot, for instance, cover correspondence between the Scottish solicitor and the lawyer appointed in the foreign jurisdiction once legal aid has been granted.

Some states will accept applications in English but some will not. If not, we will arrange for the application and the supporting papers to be translated. We will not grant increases to enable you to get your own translations.

Increases cannot be granted

5.72 European Court of Human Rights

We will refuse requests for increases to investigate and prepare cases for submission to the European Court of Human Rights, since an application to the European Court of Human Rights is not a matter of Scots law.

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5.73 Executry

Advice and assistance is available for winding up an estate provided the applicant, whether they are the executor or a beneficiary to the will, is financially eligible. You should bear in mind that:

ABWOR is available in relation to petitions for the appointment of an executor, including getting the extract decree dative of appointment. It is, however, only available for unopposed petitions and if we receive a further request when the proceedings become opposed, we cannot grant it.

An application for confirmation of an executor is technically a judicial step in procedure but a grant of civil legal aid is not necessary and advice and assistance can be given.

Advice and assistance may also be of assistance in winding up small estates. In due course, any such estates will be regarded as property recovered or preserved in terms of the advice and assistance regulations. Increases can be made available to carry out this work.

5.74 Failure to obtemper court orders

For an increase for this topic we strongly recommend you use template 35.

5.75 Fatal Accident Inquiries

Advice and assistance cannot be used for representation at a Fatal Accident Inquiry. Civil legal aid is available for these proceedings.

In general, we will only grant an increase to enable you to prepare and lodge the civil application. We will not usually allow substantial increases to take statements from witnesses that the procurator fiscal or you intend to call.

For an increase for this topic we strongly recommend you use template 36.

5.76 Guardianship

For an increase for this topic we strongly recommend you use template 37.

5.77 Housing

5.78 Housing benefit

For an increase for this topic we strongly recommend you use template 38.

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5.79 Appeal against decision of the Independent Appeal Service

For an increase for this topic we strongly recommend you use the template 39.

5.80 Eviction

If civil legal aid is needed to defend the action, advice and assistance is available to submit the application. Advice and assistance is not available for any steps in proceedings, to deal with which you will need to apply under the civil legal aid special urgency provisions.

For an increase for this topic we strongly recommend you use template 40.

5.81 Dampness and housing repair claims

For an increase for this topic we strongly recommend you use template 41.

5.82 Interdict

5.83 Interdict against abuse

For an increase for this topic we strongly recommend you use template 42.

5.84 Other interdicts

For an increase for this topic we strongly recommend you use template 43.

5.85 Breach of interdict

For an increase for this topic we strongly recommend you use template 44.

5.86 Judicial review(including judicial review of Board decisions)

For an increase for this topic we strongly recommend you use template 45.

Often solicitors will ask for an increase to get an opinion from counsel to support an application for judicial review. We do not always need this for the full application and, therefore, will not automatically grant an increase. If we have received an application, and specifically asked for counsel’s opinion, an increase will be granted.

In all other situations, each request will need to be considered on its own merits.

If you are asking for an increase to more than £500, you must give good reasons to show that this is justified.

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5.87 Mental Health (Care and Treatment)(Scotland) Act 2003

Advice and assistance may be given in respect of any matter arising under the Mental Health (Care and Treatment) (Scotland) Act 2003. If it is a civil matter and you are satisfied it can only be resolved by proceedings in a civil court, and the applicant is likely to qualify for civil legal aid, the initial limit of expenditure would be £180.

ABWOR is available in relation to any proceedings before the Mental Health Tribunal for Scotland.

No specific criteria have been laid down for granting ABWOR in these proceedings. In addition, no financial test has to be met for these cases to be eligible for advice and assistance.

Applications for advice and assistance or ABWOR may be made by, or on behalf of, a patient or by the patient’s nearest relative.

The basic limit may not be enough, unless you can dispose of the matter before any hearing in the tribunal.

For an increase for this topic we strongly recommend you use the templates 46 and 47.

If your client is to lead expert evidence, we may be prepared to grant a larger increase.

5.88 Naturalisation as a British citizen

For an increase for this topic we strongly recommend you use template 48.

This template reflects the work involved in most straightforward applications. You might need to apply to us for a further increase for a more complicated case – for example, for:

5.89 Non-harassment orders

For an increase for this topic we strongly recommend you use template 49.

5.90 Payment actions

For an increase for this topic we strongly recommend you use template 50.

5.91 Pensions

If you are applying for, or already have, an templated increase under “Family/Divorce”, you should use the “additional work” under that template to apply for an increase relating to pensions.

To pay for the administration costs of getting a cash equivalent transfer value (CETV) you can apply for an increase in authorised expenditure.

There are only limited situations where a full actuarial valuation may be needed to ascertain the value of any pension, where:

If it is appropriate to grant an increase to cover the cost of a full actuarial valuation, an increase to £600 can be made.

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5.92 Pension splitting

If you are applying for, or already have, an templated increase under “Family/Divorce”, you should use the “additional work” under that template to apply for an increase relating to pensions.

In advising the applicant about pension sharing, you need to take several matters into account including whether it would be better to offset the value of the pension against other matrimonial or civil partnership property.

You may seek increases in authorised expenditure to get advice from actuaries or other professionals before advising the applicant about their options. Where it is shown that

we can grant an increase of £500 for this. Where the value of a pension is low, possibly around £5,000 or less, it is unlikely to be reasonable to allow an increase in authorised expenditure for such expert reports.

5.93 Recovery of heritable property (mortgage rights)

For an increase for this topic we strongly recommend you use template 51.

5.94 Reparation

Many reparation cases will fall into the categories for which there are templates. If so, you should be able to make a single increase request at the outset of a case and not return to us for further increases.

If you need to do work that does not come into these categories, you should refer to paragraph 5.97 and the sections on specific types of case.

5.95 Personal injuries – claim for damages between £3,000 and £10,000

For an increase for this topic we strongly recommend you use template 52.

NOTE
This section was amended in January 2008 to take into account the new small claims limit

5.96 Personal injuries – claim for damages exceeding £10,000

For an increase for this topic we strongly recommend you use template 53.

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5.97 Reparation – non “templated” increases

In all reparation cases, when asking for an increase you should tell us

We also need to know if the claim will be above or below the small claims limit (£3,000). If it is less, that will have an effect on the increases we grant. Legal aid is not available to pursue or defend small claims apart from personal injury. You should refer to paragraph 5.115, dealing with small claims.

The Small Claims (Scotland) Amendment Order 2007 excludes actions for personal injury from the category of actions that must be brought as small claims, and we can, therefore, grant civil legal aid for these. The normal guidelines for increases therefore apply to all personal injury cases, including medical negligence, regardless of whether they are below the small claims limit. Where the value of the claim is modest we may grant only limited additional expenditure or we may not grant an increase at all.

If the claim is above the small claims level, you should satisfy us that you have addressed issues of liability and causation before carrying out substantial work on quantum. Where liability is admitted or the opponent wishes to negotiate, we can look at requests to get other necessary reports such as medical or specialist reports and consider increases to enable negotiations to take place. We need your assurance that these negotiations are meaningful.

You should, where appropriate, refer to the individual guidelines that follow, covering specific types of reparation claim.

NOTE
This section was amended in January 2008 to take into account the new small claims limit. The third paragraph was amended in April 2009 to omit references to templates, and by adding the final sentence.

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5.98 Beat knee

Requests for increases for beat knee cases are generally to enable you to confirm an applicant’s employment history with the HM Revenue and Customs, to intimate claims to the appropriate employer’s liability insurers, to identify, contact and take statements from fellow employees and to get medical reports.

There is little point in pursuing a claim until an applicant’s medical condition has been established, and you can apply for an initial increase to £500 to enable you to get a specialist report, which will cost about £150 - £300.

5.99 Defective equipment

In cases where loss has allegedly been sustained because of defective equipment or defects in, for example, a vehicle, the applicant will need get a report from an appropriate specialist, either to support continuing negotiations or to support an application for legal aid. That could be an architect or builder in a building dispute or vehicle assessor in a dispute over defects in a car. We can give an increase to cover the reasonable costs of getting such a report. These costs may vary depending on the circumstances but an initial report should cost between £300 and £600. However, if the claim is less than £3,000 it will be a small claim, and you should refer to paragraphs 5.97 and 5.115.

NOTE
This section was amended in January 2008 to take into account the new small claims limit

5.100 Dyslexia

These actions are similar to other claims based on professional negligence. An expert report addressing the tests laid down in the case of Hunter v Hanley (1955 SLT 213) is needed. For general guidance on our approach to professional negligence claims see paragraphs 5.107 and 5.108. . However, if the claim is less than £3,000 it will be a small claim, and you should refer to paragraphs 5.97 and 5.115.

NOTE
This section was amended in January 2008 to take into account the new small claims limit

5.101 E-coli and other food poisoning

Applications for increases in authorised expenditure in relation to e-coli will be treated in the same way as any other food poisoning case.

NOTE – Gulf war syndrome
Guidance on Gulf war syndrome was removed in April 2007.

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5.102 Hepatitis C infection

There have been political developments on hepatitis C cases following an English judgement. We may consider an increase for cases affected by that judgement.

5.103 Industrial deafness

There is little point in pursuing a claim until an applicant’s medical condition has been established and you can ask for an initial increase to £400 to £450 to get a specialist report.

Where the medical report does find the deafness is likely to be due to industrial injuries, you can ask for a further increase to negotiate with insurers. You should give us a copy of the medical report and your views on quantum.

5.104 Injuries at work

In actions about injuries at work, a civil application should contain

You can apply for an increase in authorised expenditure to £550 to apply for civil legal aid. You can request a further increase for any necessary reports.

5.105 Post-traumatic stress disorder

Requests for increases in relation to this disorder are usually made to get a psychiatric or psychological report in support of any claim. These reports should generally not be obtained until all liability issues have been dealt with, since they are concerned with quantum rather than liability. A rough estimate of quantum is needed as an increase in expenditure may not be justified if the value of the case is below £1,500.

An increase of £650 is usually sufficient to cover the cost of getting and considering a report.

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5.106 MRSA

In cases where MRSA may have been contracted during medical treatment and damages are being sought, a civil legal aid application needs to contain

We may grant an increase in authorised expenditure to £850. If any reports will cost more than this you can ask for a further increase.

5.107 Medical negligence

For an increase for this topic we strongly recommend you use templates 54 to 56.

5.108 Other types of professional negligence

We need the same basic information in support of a request as in reparation (see paragraphs 5.94 to 5.97) and you should address liability first.

Requests for increases in cases of professional negligence other than medical negligence (for example, solicitors, surveyors, architects) follow much the same pattern, although medical records will not normally be involved. (There will be a few, however, where medical evidence is needed, if a claim is made relating to mental or physical injuries sustained because of the negligence.) A report from an appropriate specialist will always be needed in support of an application for legal aid. However, if the claim is less than £3,000 it will be a small claim, and you should refer to paragraphs 5.97 and 5.115.

NOTE
This section was amended in January 2008 to take into account the new small claims limit

5.109 Tobacco claims

Increases in authorised expenditure can be granted to enable applicants to

An increase to a maximum of £600 is usually sufficient for these purposes.

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5.110 Vibration white finger

You can ask for increases for vibration white finger cases to

There is little point in pursuing a claim until an applicant’s medical condition has been established and an initial increase can be granted to about £500 to enable you to get a specialist report.

If a satisfactory medical report has been obtained, we may grant a further increase to enable other aspects of the claim to be pursued.

5.111 Reparation – drugs-related cases

5.112 Steroids

Requests for increases need to address the following issues –

We also need

If these matters are all addressed satisfactorily, an increase of £500 upwards can be granted for obtaining a Hunter v Hanley report.

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5.113 Vaccine damage

Vaccine damage claims arise when people suffer symptoms and problems following vaccination. Adults qualify if vaccinated during an outbreak of the disease. It is not necessary to show negligence but disability of at least 60% has to be shown. You can ask for increases in authorised expenditure to allow reports to be obtained to satisfy this 60% rule.

5.114 Sexual offence prevention order

For an increase for this topic we strongly recommend you use template 57.

5.115 Small claims

The Act excludes small claims processes at first instance from civil legal aid. (A small claim is for a sum less than £3,000.) However, advice and assistance can be used to provide advice on preparing a small claim although, as in any other type of action, it cannot cover representation.

Under the rules on property recovered or preserved, you would be expected to take your fee from any property recovered or preserved unless you make a successful application under regulation 16(3) to waive that rule.

In general, it would be unreasonable to give any increase where the value of the matter in dispute is under £180, or to authorise expenditure amounting to more than one-third of the value of the claim. There may, however, be special circumstances and each case has to be considered on its own merits. The value of the claim must be stated.

If the applicant is a defender in a small claims action, you must tell us whether the debt is denied or admitted.

The Small Claims (Scotland) Amendment Order 2007 excludes actions for personal injury from the category of actions that must be brought as small claims, and we can, therefore, grant civil legal aid for these. The normal guidelines for increases therefore apply to all personal injury cases, regardless of whether they are below the small claims limit.

NOTE
This section was amended in January 2008 to take into account the new small claims limit. It was further amended in April 2009 to remove a reference to templates
.

5.116 Social security

5.117 Department for Work and Pensions decision

For an increase for this topic we strongly recommend you use template 58.

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5.118 VAT tribunals

You need our prior authority for proceedings before the VAT and Duties Tribunals for Scotland which consist of an appeal against a penalty imposed under section 60 of the Value Added Tax Act 1994 or section 8 of the Finance Act 1994. We must be satisfied that it is

to make ABWOR available.

The factors we have to consider in deciding whether it is in the interests of justice to allow ABWOR to be given 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

You must consider this factor with the individual applicant in mind. Is the case before the tribunal so ordinary or straightforward that they could understand it and put forward their own case? Or is it a case where legal argument must be put forward or opposed, or where the evidence of the applicant or opponent is complicated? Is there something in the circumstances of the case relating to law or evidence that makes it special or extraordinary from a lay person’s standpoint, so that in fairness to them a solicitor should be available? Examples of issues which could be taken into account are –

(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.

Normally, we can expect that an applicant would be able to understand the proceedings and to state their own case. We will consider each case on its merits. However, a statement that the applicant is of low intelligence or is a poor communicator is unlikely to be persuasive unless they come into one of the categories listed above. Examples would be if they have a speech impediment, are deaf or dumb, of advanced years or immature, or they are perhaps an immigrant who has not achieved a working knowledge of English. An argument that the applicant should be allowed to state their case through a solicitor to put them on equal terms with the opponent is unlikely to satisfy this factor.

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 should address these issues in appropriate detail.

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5.119 Watching brief

Increases are sometimes sought to enable a solicitor to attend a trial or fatal accident inquiry for the purpose of a watching brief on behalf of a client.

We will only authorise increases in rare and exceptional circumstances. Where these exist, you should tell us

5.120 Welfare benefit analysis

We cannot pay you for fees you have paid to an outside agency to get a welfare benefit analysis for your client.

5.121 Wills

The £95 limit should usually be enough to cover drafting a will.

Before agreeing to grant any increase we must be persuaded there is a good reason to use public funds for this, as drafting a will is normally a voluntary act. If you satisfy us that the use of public funds for this is reasonable, we will consider granting an increase if some specific complexity is involved in drafting the will because of its provisions, or where you have to travel to the testator’s home or hospital.

5.122 Power of Attorney

An increase in authorised expenditure can be applied for to cover the costs of preparing and drafting a power of attorney. The Board does cover the cost of the registration of this document. An increase can be sought to cover a GP report to support the application should this be necessary. Consideration can be given to other expert reports. An increase can be sought to cover a home/hospital visit should the applicant be unable to travel.

5.123 Home/Hospital/Prison Visits

An increase can be sought to visit the applicant at their current residence. When requesting an increase you should state why the advice being given is urgent cannot await their recovery/release and why such a visit is necessary i.e. confirm why/how the applicant is housebound.

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