1.1 Definition of civil legal aid
1.2 Excepted proceedings
1.3 Availability of legal aid
1.4 General availability
1.5 Legal aid abroad
1.6 Effective date
1.7 Applications for civil legal aid
1.8 Essential information for applicants
1.9 The application forms
1.10 The statutory statement – a statement of the case and the applicant's interest in it
1.11 Opponent’s right to lodge representations
1.12 Accurate information about opponents
1.13 Waiving the requirement for intimation
1.14 Statements and other documents we need
1.15 Applications by someone unable to sign or suffering from a mental disorder
1.16 Application by person resident outwith the UK
1.17 Applications by or on behalf of children
1.18 Previous action a bar to further proceedings
1.19 Power of the Board to modify or impose conditions
1.20 Refusal of legal aid
1.21 Review of refusal of legal aid
1.22 Applications for legal aid for proceedings where the Board is a party
1.23 Judicial review
1.24 All cases
1.25 Information to send us if you are acting on behalf of an opponent of an applicant or assisted person
Unless otherwise stated, "the Act" or "the 1986 Act" means the Legal Aid (Scotland) Act 1986, and “the regulations” means the Civil Legal Aid (Scotland) Regulations 2002.
A definition of civil legal aid is provided in section 13 of the Act. This should be read in conjunction with Part I of Schedule 2 to the Act (which indicates the courts in which legal aid may be granted for proceedings) and Part II of Schedule 2 to the Act (which excludes legal aid from certain proceedings).
Legal aid consists of representation by a solicitor and, where appropriate, by counsel in any proceedings covered by the Act. It includes all assistance usually given by solicitor or counsel in the steps preliminary to or incidental to proceedings, or in arriving at or giving effect to a settlement to prevent them or bring them to an end. Where it is appropriate for representation to be provided by counsel, that representation may instead be provided by a solicitor holding rights of audience by virtue of section 25A (rights of audience) of the Solicitors (Scotland) Act 1980 in proceedings before the court or courts in which the solicitor holds such a right of audience.
Part I of Schedule 2 to the Act specifies the courts in relation to which civil legal aid is available. These are
Legal aid is also available
If one of these courts makes a reference to the European Court of Justice under Article 234 of the EEC Treaty, proceedings in the European Court of Justice are part of the proceedings in the court making the reference. Any grant of legal aid for proceedings in a "domestic" court would, therefore, cover the proceedings in the European Court in connection with the reference.
Reference to the availability of legal aid for proceedings before the Child Support Commissioners was removed in September 2009, as legal aid is no longer available for these proceedings. The availability of legal aid for proceedings before the Social Security Commissioners was restricted in September 2009 to reflect the limited scope of proceedings for which legal aid is available. References to the House of Lords and the Judicial Committee of the Privy Council were replaced by the Supreme Court, with effect from 1 October 2009.
Part II of Schedule 2 to the Act defines certain proceedings for which civil legal aid is not available. Thus, for example, legal aid is not available for
Reference to the Civil Legal aid for Defamation or Verbal Injury Proceedings (Scotland) Direction 2008 added August 2008
Proceedings under the Debtors (Scotland) Act 1987 are also excluded from legal aid, except for applications made in a Court of Session action or in an ordinary cause sheriff court action for time to pay directions and for variation of time to pay directions. Appeals arising in respect of any proceedings under the 1987 Act are also within the scope of legal aid. The right of a third party to proceedings under the 1987 Act to apply for legal aid is not precluded.
These provisions in relation to the Debtors (Scotland) Act do not exclude civil legal aid to pursue or defend debt actions (other than small claims, which are separately excluded). They do exclude applications for time to pay orders and directions (or variation of directions) in summary cause actions. However, if we have granted legal aid either to pursue or defend the merits or quantum of a summary cause payment action, we regard that legal aid as covering work done to seek a time to pay direction. Where a time to pay direction was validly dealt with under legal aid, that legal aid will also cover any subsequent variation of the direction, provided we are notified on each occasion that variation is attempted or opposed.
1.2.1 Simple procedure actions
By virtue of Schedule 2 as amended by the Courts Reform (Scotland) Act 2014, legal aid is not available in the following categories of simple procedure actions at first instance.
This means that there are a range of actions which will proceed by simple procedure where legal aid is available at first instance.
It is available for the following non-exhaustive list of simple procedure actions:
Legal aid is available for all simple procedure actions in relation to appeals.
Legal aid is available to a person where, on application, we are satisfied that
The relationship between the tests of probable cause and reasonableness is discussed in the case of McTear-v-The Scottish Legal Aid Board 1995 SCLR 611.
We also assess an applicant’s disposable income and capital in deciding whether to grant legal aid (section 15 of the Act).
The availability of legal aid is not restricted in any way by nationality or residence. It is available to anyone who is a party, or will be a party, to proceedings before a court in Scotland, provided legal aid is available for those proceedings and in that court.
Legal aid in some form is available in many other states. You may refer to the "International Directory of Legal Aid" published in 2002 by the International Bar Association Educational Trust/Sweet & Maxwell Ltd.
Most of the European and Scandinavian states have special arrangements to facilitate applications by residents of one state for legal aid in another state. The arrangements for this are contained in the European Agreement on the Transmission of Applications for Legal Aid signed at Strasbourg on 27 January 1977. The following countries participate in these arrangements: Austria, Belgium, Bulgaria, Denmark, Eire, Finland, France, Greece, Italy, Lithuania, Luxembourg, Netherlands, Norway, Poland, Portugal, Spain, Sweden, Switzerland, Turkey and the UK.
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 for legal aid from foreign residents. The Board is the designated transmitting and receiving authority in Scotland.
If someone resident in Scotland wishes to apply for legal aid in civil, commercial or administrative matters in the territory of another state which is party to the agreement, you should send us the application with clear instructions to transmit it to the other state concerned. The application should be prepared in the same way as any other application for legal aid in Scotland, and the same forms, including the financial form, should be used. Most of the states concerned will accept applications in English. We can tell you if any special requirements apply, such as translations of certain documents.
We, as transmitting authority, must assist the applicant, ensuring the application includes all the documents we know are needed to assess it, and providing any necessary translation. We may refuse to transmit an application if it appears to be manifestly not made in good faith. Such a refusal is not a refusal of legal aid. The applicant may, if they wish, apply direct to the appropriate authority of the other state.
A Scottish solicitor may give advice and assistance on the transmission of a legal aid application in accordance with the agreement (see Part III paragraph 5.71). We will arrange for any necessary translation of documents.
If we receive an application for legal aid from a designated transmitting authority in another state which is a party to the agreement, we must deal with the application under its usual procedures. However, all documents forwarded in pursuance of the agreement are exempt from "legalisation or any equivalent formality" – in other words, we cannot insist on documents being sworn to or attested in any particular way. As receiving authority, we must inform the transmitting authority of any difficulty relating to our examination of the application and of the decision we take on it.
It follows from the wording of sections 14 and 15 of the Act that legal aid is not available to an applicant until we are satisfied on probable cause, reasonableness, and financial eligibility. The date when we are satisfied on these is shown as the "effective date" on the legal aid certificate. It is, therefore, important to remember that, in general, work done before the effective date of legal aid will not be covered by civil legal aid. A grant of legal aid will only cover work done before the effective date if it has been done in accordance with the special urgency provisions (see Part IV chapter 6).
An application for civil legal aid has three essential elements:
(a) completed application forms
(b) a statutory statement as to the nature of the case and the applicant’s interest in it
(c) any statements and other documents we may need to assess the application.
(d) Legal Aid Declaration (CIV/SOL) to record key information and capture the applicant’s and solicitor’s signatures. All declarations must be:
Before applying for legal aid, it is essential that applicants understand the implications and responsibilities of this.
You should also ensure that, before applying, they are aware that legal aid is not always free. You should explain that, depending on their finances and on the nature of the case, they could have to pay
(a) a contribution from their income and/or capital towards the cost of the case
(b) if they get or keep property or money, some or all of their own costs from that property
(c) if they lose the case, some or all of their opponent’s costs.
Paragraph 1.8 added August 2007
All applications must be made using Legal Aid Online and providing the appropriate applicant’s form which deals with the financial aspects.
The applicant’s financial eligibility forms – either:
The applicant must sign the applicant’s form, (unless you cannot get their signature in a case of special urgency and want us to consider using our discretion to allow your signature).
Our guidance on completing the forms is included in Appendix 4 of this Handbook, and on our website.
Reference to income-related employment and support allowance added October 2008
The purpose of the statutory statement is twofold:
Provided these objectives are met, there is no need for a lengthy detailed statement. Remember, too, that it may be founded upon by the opponent in subsequent proceedings.
In the statement, you must specify the nature of the proceedings for which legal aid is being sought. If you refer to sections or sub-sections of particular Acts, for example, Family Law (Scotland) Act 1985, section 14(2)(a), please give the reference in full.
We may send the statutory statement to someone who is not legally qualified – for example an opponent. You should, therefore, describe in lay terms what the applicant is seeking by the action – for example, “sale of property”.
There may be some reason why you do not want us to pass on the address of the applicant to others involved in the case – for example, if an interdict is being sought to prevent domestic abuse. If so, do not include the applicant’s address in the statement as we send this direct to the opponent or the opponent’s representatives.
The information in the statement needs to give sufficient notice to the opponent of the proceedings for which legal aid is sought. However, you do not have to set down every aspect of the case in the style of an initial writ. Examples of suitable or standard styles for statutory statements are shown below.
If we receive a statutory statement which we do not think gives adequate notice to any opposing party, then we will ask you to provide a fresh one.
Examples of suitable styles for statements
Reparation – personal injuries
Divorce – unreasonable behaviour
• capital sum
• periodical allowance
• pension sharing order
• order for transfer of opponent’s title in the matrimonial home.
In relation to petitions for judicial review, we require the following standard format as a minimum requirement – see also 4.76C [include link].
Amended April 2007
We need to tell the opponent that legal aid is being applied for. We send them a copy of the statutory statement explaining the nature of the case and the applicant’s interest in it. An opponent has the right to send us representations within 14 days (28 days if they are living overseas). We accept representations made outwith this period.
One of the statutory tests for civil legal aid is that it is reasonable to make legal aid available for court proceedings. It will seldom be reasonable for legal aid to be made available where proceedings are unnecessary because the opponent is willing and able to resolve the matter without the need for court proceedings. Another important aspect of the statutory statement is to allow an opportunity for the possibility of extra-judicial resolution notwithstanding the application for legal aid. The application process will continue as normal, but if intimation of the statutory statement has the effect of causing the opponent to take steps to resolve the matter, that may have an impact on the application, or the need for legal aid, or if already granted, the continuance of legal aid.
Amended April 2007
It is important that you give us accurate information about the opponents so that we can send the statutory statement to the correct address. If you give us incorrect details on the application form we will not be able to do this and this may delay the application.
Occasionally, organisations that have received intimation of applications contact us because they have been unable to respond. This usually occurs where they are the opponents in a reparation action and the intimation document has been addressed to the office in the area where the accident occurred rather than the appropriate legal office or headquarters. It has also occurred where proceedings are to be taken against Scottish Ministers over matters arising from an individual’s detention in prison – the opponents are often wrongly described as the Scottish Prison Service rather than the Scottish Ministers.
When completing details about the opponent you should ensure that the address you give is that of the appropriate individual or office. Not doing so can result in delays in processing the application. You should also refer to our website for the correct address for certain organisations.
In some circumstances – for example, domestic abuse where the applicant fears detection by the opponent – you may apply for us to waive the requirement for intimation. This can be done by noting “not to be intimated” in the first line of the opponents address and thereafter providing us with an explanation in the free text box “reasons why there are no supporting documents” within the civ sol registration.
If, following reasonable enquiry, you do not know the opponent’s address, you must still tell us their name. It is our duty to tell the opponent that an application for legal aid has been made and if, for example, they have also applied for legal aid, we may know their address or that of their solicitor.
The statements and other documents we need to assess the application fall into two distinct categories:
In general, so far as "merits" papers are concerned, we will expect to see
All statements should show the date on which they were taken, to place the matters dealt with in a proper context. In an application for legal aid to raise proceedings, the applicant's statement should contain sufficient information to confirm that the court in which the proposed proceedings are to be brought has jurisdiction to deal with them.
Except where material cannot effectively be copied, you should not send us original documents or productions in support of applications. Good quality photocopies will normally be sufficient. Marriage and birth certificates need not, in general, be produced, unless they are of particular significance to some matter in issue.
We give further information about the information we expect to see about the applicant’s financial circumstances in Part IV chapter 2.
Notwithstanding our general requirements set out above, different types of proceedings will be supported by documentation specific to them. We have identified certain evidential requirements for the most common applications and these are covered in Part IV chapter 4. There are also specified minimum requirements for applications in certain types of proceedings, which if not met, will lead to an application being rejected.
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Where we reject an application, there is no valid application before us. A rejected application can however be remedied by subsequent submission of the missing material, but critically, any such application is only effective and valid from the date we have the full application. That is to say, a rejected application remedied by subsequent submission of missing material is not backdated or otherwise effective from the original date of submission.
Where there is an adequate explanation for non-compliance with the minimum requirements, we may accept the application, and in that event we will confirm that we are satisfied with the explanation by accepting the application. Where any explanation is inadequate, the application will be rejected.
The date of the application shall be the date when we are in receipt of the minimum requirements or otherwise have accepted the application. This has particular importance for special urgency work. Where you carry out work under special urgency, a rejected application does not constitute a submitted application for civil legal aid for the purposes of the requirement of regulation 18(3) that an application be submitted within 28 days of the commencement of the work. It is very important to understand that we cannot make payment for work carried out under special urgency unless a valid application has been submitted and accepted within the twenty eight day period.
In addition, where you carry out work under advice and assistance in relation to an application that has been rejected for failure to comply with the publicised minimum requirements without good reason, we may abate charges relating to wasted work from any advice and assistance account on the basis that it was not reasonably incurred.
An applicant must normally sign the application but, if it can be shown that they cannot sign it, a person authorised on their behalf may do so. If the applicant is mentally disordered in terms of section 328 of the Mental Health (Care and Treatment)(Scotland) Act 2003, their legal representative may sign the application. ("Legal representative" is defined in regulation 2 as a person having parental responsibilities in relation to a child, a judicial factor or a person authorised to act on an adult’s behalf under the Adults with Incapacity (Scotland) Act 2000. "Mental disorder" means mental illness or mental handicap however caused or manifested.)
There are special formalities for completion of an application by someone resident outwith the UK who is not able to be in the UK when their application is being considered. The application must be
We may, however, waive these requirements to avoid serious difficulty, inconvenience or delay.
A "child" is defined in regulation 2 as a person under the age of 16 years. Where a child is a party to civil proceedings, an application for legal aid may be made on their behalf by
The child may, however, be entitled in certain circumstances to apply for legal aid in their own name, in which case we will accept an application in name of the child alone.
If you are consulted on a civil matter relating to a child you must form a view about their general understanding of what it means to instruct a solicitor on any civil matter.
If we receive an application bearing to have been made by a child aged 12 or more, we are entitled to assume that you have satisfied yourself that the child has a general understanding of what it means to instruct a solicitor. We will register the application in name of the child.
If you send us an application bearing to have been made by a child aged under 12, you should include a letter stating that you are satisfied that the child in question has a general understanding of what it means to instruct a solicitor. In appropriate circumstances, we may query any such letter – for example, if the child is extremely young. Where we are satisfied with the letter, we will register the application in name of the child.
Where we receive an application made and signed by a parent, guardian, carer, or curator, acting on behalf of a child, we will assume that you consider the child in question does not have a general understanding of what it means to instruct a solicitor. We will register the application in name of the child with reference to the name of the person representing the child and the capacity in which that person is acting.
You should refer to Part IV paragraphs 4.100 to 4.105 for what we will consider in looking at the merits of an application by a child.
Circumstances may arise where the existence of an earlier court action may operate as a bar to further proceedings being taken in relation to the same subject matter. For example, an assisted person who has been given legal aid to pursue divorce proceedings may find that an earlier action which would affect the validity of the marriage has been raised but did not proceed to judgement. If the new action is to progress, steps must be taken to have the earlier action dismissed.
A grant of legal aid normally covers only one court action, but where all that is needed is steps to have the earlier proceedings dismissed, we will treat this as purely ancillary to the more recent proceedings in which legal aid has been granted. You do not need another grant of legal aid to dispose of the earlier proceedings or to have an earlier certificate transferred into your name.
This concession applies only to cases where the earlier action can be disposed of without opposition. If the steps taken result in the earlier action becoming a live issue again, you will need either to make a fresh application for legal aid to continue the earlier action or apply for a transfer of an earlier grant, if still valid.
Section 14(2) of the Act provides that we may set any conditions we consider expedient on a grant of legal aid to enable us to satisfy ourselves from time to time that it is reasonable for the assisted person to continue to receive legal aid. Regulation 27 gives us power to modify these conditions, or to impose conditions or additional conditions, at any time before the conclusion of the proceedings.
We must write to the applicant, their solicitor, any opponent whose address is known and any known solicitor acting for the opponent informing them whether we have granted or refused legal aid.
Where we refuse an application, we have to tell the applicant that the refusal was based on one or more of the specific grounds set out in regulation 19. These grounds are:
(a) we have determined that the applicant has disposable income which makes them ineligible for legal aid;
(b) we have determined that the applicant has an amount of disposable capital which renders them liable to be refused legal aid and that it appears to us that they can afford to proceed without legal aid;
(c) the proceedings to which the application relates are not proceedings for which legal aid may be given;
(d) it appears to us by virtue of the provisions of regulation 14(2), regulation 15 or, as the case may be, regulation 16, that legal aid should not be granted;
(e) we are not satisfied that they have probable cause;
(f) it does not appear to us that it is reasonable in the particular circumstances of the case that they should receive legal aid.
Under section 14 (3) of the Act we have to have a procedure so that anyone whose application has been refused may apply to us for a review of the decision. Regulation 20 sets out the formal requirements for an application for review. The application must normally be lodged within 15 days of refusal. However, you can ask us for extra time to send us the application for a review if you have some special reason for needing this, and we may accept a late application if there is special reason to do so.
The application should include
We write formally to all parties and their solicitors (unless intimation has been dispensed with or postponed) telling them we have received an application for review. If you are acting for the opponent of an applicant for legal aid, you should remember that the applicant may ask for extra time to apply for a review.
Special review arrangements apply where the purpose of the refused legal aid application was to enable the applicant to raise an action against the Scottish Legal Aid Board. (See paragraphs 1.22 to 1.24.)
Amended April 2009
When applying for civil legal aid for judicial review of a decision by us, you should take care to address the legal basis of the application. You should not treat an application for judicial review as simply a further review of, or appeal against, our decision on an earlier application.
The application must meet the minimum requirements for applications for civil legal aid for petitions for judicial review [see 4.76A etc]. An application which does not meet minimum requirements will be rejected. For further information about the effect of an application being rejected see [1.14].
The minimum requirements listed at 4.76 are not lessened simply by virtue of the fact the issue concerns a decision of SLAB. Historically, difficulties and delays have been caused by applicants or their solicitors adopting a different approach where the application for legal aid relates to judicial review of a SLAB decision, specifically with minimal or insufficient information being provided, whether in relation to which decision giving rise to the application, and/or upon the legal basis the decision is to be challenged. Compliance with the minimum requirements ensure that you will:
In an application based on illegality, if the challenge is that the decision we took was ultra vires, you must set out in detail the way in which we have acted beyond our powers. If it is suggested that we have used our discretion improperly, you must specify the impropriety. If it is suggested that we have had regard to irrelevant factors or failed to take account of relevant factors, identify these factors clearly.
Where it is suggested that there has been a procedural impropriety, which might include a breach of natural justice, you must be specific and identify what aspect of the procedure you consider improper or in what way you consider a breach of natural justice has occurred.
In an application based on the Human Rights Act 1998, the application should address which right under the European Convention on Human Rights the Board is alleged to have breached and the basis for this. Details of supporting case law should be provided.
If relying on irrationality or “Wednesbury unreasonableness”, the test to be satisfied in a judicial review is a high one and the application for legal aid must demonstrate that probable cause exists. The exacting nature of the test is reinforced in the case of K -v- SLAB, 1989 SCLR 144 and in the case of McTear -v- SLAB, 1995 SCLR 611 in which, at page 623, Lord Kirkwood says:
“In an application for judicial review the court cannot interfere with the decision of the Board merely because the court might have reached a different conclusion or exercised its discretion in a different way.
Parties were also agreed that the petitioner’s case fell to be tested by reference to what is commonly called “Wednesbury unreasonableness”. In Associated Provincial Picture Houses Ltd v Wednesbury Corporation  1K.B.223 Lord Greene at pp. 233-234 summarised the principle applicable as follows.
“The court is entitled to investigate the action of the local authority with a view to seeing whether they have taken into account matters which they ought not to take into account, or, conversely, have refused to take into account or neglected to take into account matters which they ought to take into account. Once that question is answered in favour of the local authority, it may still be possible to say that, although the local authority have kept within the four corners of the matters which they ought to consider, they have nevertheless come to a conclusion so unreasonable that no reasonable authority could ever have come to it. In such a case, again, I think the court can interfere. The power of the court to interfere in each case is not as an appellate authority to override a decision of the local authority, but as a judicial authority which is concerned, and concerned only, to see whether the local authority have contravened the law by acting in excess of the powers which Parliament has confided in them.”
In Council of Civil Service Unions v Minister for the Civil Service  1A.C. 374 at p.410 Lord Diplock described an unreasonable decision as being one which is “so outrageous in its defiance of logic or of accepted moral standards that no sensible person who had applied his mind to the question to be decided could have arrived at it”. In the context of an application for judicial review the test which requires to be satisfied to demonstrate unreasonableness is an exacting one (Venter v Scottish Legal Aid Board, 1993 SCLR. 88 per Lord President Hope at p. 102C.”
We are not the final arbiter of whether legal aid should be granted for proceedings in which we are the opponent. If we are not minded to grant the application at the review stage, we will refer it, in terms of section 14(4) of the Legal Aid (Scotland) Act 1986, to the Sheriff for Lothian and Borders at Edinburgh for final consideration. In doing so, we may submit any observations we wish to make on the application.
The sheriff must then decide whether the applicant has probable cause and whether it is reasonable in the particular circumstances of the case that the applicant should receive legal aid. The sheriff's decision is final. Where the sheriff decides in favour of the applicant, we would then assess the applicant's financial eligibility as usual and consider whether any grant of legal aid should be subject to any condition in terms of section 14(2).
We have a specialist unit dedicated to investigating cases where we have grounds for suspecting we have been given false information.
Getting the right information from opponents in civil cases helps us identify such applications, and to investigate them effectively. If you are acting for an opponent of a legal aid applicant, and they wish to make financial representations, please ask them to send us information such as that below.
The more information that accompanies the allegations, the more effective and responsive our investigation can be.
Representations can be sent by email to email@example.com , alternatively if you would like to fax your representations use fax number 0131 240 2681.
There is a guidance booklet available for opponents in civil legal aid cases, which you can access online at www.slab.org.uk, alternatively you can request a copy of this by telephoning 0131 240 2067 – 0131 240 2068 – 0131 240 2149.