Handbooks Index

 

Part 4: Civil legal aid


Chapter 8

Changes of circumstances and withdrawal of legal aid

 

8.1 Duty to report change of circumstances

8.1A Change of Address

8.1B Reporting a Death
8.2 Duty to report abuse of legal aid
8.3 Power of the Board to amend assessment
8.4 Suspension of legal aid
8.5 Termination of legal aid on change of circumstances
8.6 Stopping legal aid other than because of a change of circumstances
8.7 Termination of legal aid in cases of false or incomplete information

 

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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.

8.1 Duty to report change of circumstances

In terms of regulation 23(1), an applicant or assisted person has a duty to tell us of any change in their circumstances, financial or otherwise. While, clearly, they must tell us about a change in their financial circumstances – such as a rise in salary or losing their job – it may not be their financial circumstances alone that have been, or should be, taken into account.

If it is a case where a spouse’s or cohabitee’s means must also be taken into account, any change in their means must be reported to us. Also, the financial circumstances of others may be relevant. For example, a member of the household may get a job and be able to share accommodation costs or living expenses, or the applicant may be contributing towards the support of someone else and this is no longer justified because of a change in that person's means.

If your client, during the computation period or otherwise, does not give us information we ask for to confirm our original assessment or to make a reassessment, we can suspend or withdraw the legal aid. We can also recover from them all fees and outlays we have paid to their solicitor and counsel, less any amount paid in contributions.

Under regulation 23(2), where a solicitor or counsel acting for an applicant or assisted person has reason to believe the applicant or assisted person has not complied with this duty, the solicitor or counsel must draw this to our attention.

Under regulation 23(3), any opponent who has reason to believe there is any matter that might cause us to amend a determination under regulation 28, suspend legal aid under regulation 29 or stop making legal aid available under regulations 30, 31 or 32, may draw this to our attention.

Changes of address should be reported as quickly as possible to avoid delays in communication.

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8.1.A Change of Address

Where we are considering an  application or where we have granted legal aid  we need to be told as quickly as possible of any changes of address so we can  update our records to avoid delays in the applicant or assisted person getting any correspondence.  This includes, where known, telling us about any changes to the opponents address.  A notification providing the new address details and if known, the date the change took place should be sent to us as soon as possible.

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8.1.B Reporting a Death

Where an applicant or an assisted person dies you should inform us as soon as possible so we can update our records to prevent any us sending any correspondence to the deceased which could upset family members. 

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8.2 Duty to report abuse of legal aid

During a case it may become apparent to you or counsel that the assisted person has adopted an unreasonable attitude to the conduct of the case, possibly incurring unjustifiable expense to public funds. It may also become evident that the assisted person has withheld relevant information or has given false or misleading information. In such circumstances clearly if no action is taken there will be an abuse of legal aid.

Regulation 24, therefore, imposes a duty on the solicitor or counsel to draw the matter immediately to our attention. You must make a report to us in terms of regulation 24 where, for instance, the assisted person

Regulation 24(2) provides that the duty of solicitor or counsel to report any abuse of legal aid or provide information to us as required by the Act and regulations, overrides any duty of confidentiality owed to the assisted person because of any privilege arising out of the relationship between solicitor, counsel and client. This is an exception to the stipulation contained in section 31(7) of the Act that legal aid is not to affect the relationship between solicitor, counsel and client or their respective rights.

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8.3 Power of the Board to amend assessment

Where a mistake has been made in assessing disposable income, disposable capital or maximum contribution, we may, as provided by regulation 28 (1), correct that mistake if we are satisfied it would be just and equitable to do so. Any consequent amended assessment is to have effect for all purposes as if it was the original assessment.

Apart from cases where there has been an error, we may reassess disposable income, disposable capital and maximum contribution, if there has been enough change in an assisted person's financial circumstances to justify this. Regulation 28(2) specifies the extent to which circumstances must have changed before we may carry out a reassessment.

We will carry out a reassessment if

We can only reassess capital if it has increased by £500 or more. We cannot amend our assessment to take account of a reduction in capital.

If an applicant’s financial circumstances change they should contact us to ask for our notification of changes form, which will enable them to give us all the information we need for a reassessment.

If the applicant was ineligible for legal aid under the original assessment, and a later change in circumstances may have made them eligible, they need to make a fresh application for legal aid, as the original assessment cannot be revised in terms of regulation 28(2).

The financial limits specified in regulation 28(2) for reassessment purposes are amended from time to time.

Usually, we will fix the contribution payable at the same amount as the maximum contribution assessed. However, on the solicitor’s application form, we ask you to estimate the likely cost of the case. If the maximum contribution is significantly greater than the likely cost of the proceedings, we may restrict the contribution to less than the maximum. We have power, under regulation 28(3), to increase such a restricted contribution where it appears that this will be necessary to cover the actual or estimated cost of the proceedings. The actual contribution will never, of course, exceed the maximum contribution, whatever the final cost of the case.

NOTE
Section amended May 2009

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8.4 Suspension of legal aid

Regulation 29 gives us power to suspend legal aid for up to 90 days in certain circumstances –

It is important to note that legal aid is not available during suspension. Work you do during suspension cannot be charged under legal aid, even if legal aid is again made available after the period of suspension.

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8.5 Termination of legal aid on change of circumstances

We may terminate a grant of legal aid under regulation 30 in the following circumstances –

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8.6 Stopping legal aid other than because of a change of circumstances

We may stop making legal aid available in certain situations specified in regulation 31, irrespective of any change of circumstances, where the conduct of the assisted person is incompatible with the continued grant of public funds. Under regulation 31, legal aid may be withdrawn in the following circumstances:

Termination in these circumstances does not affect the assisted person's status during the period while the grant of legal aid was in force, and does not entitle us to recover our outlay from the assisted person.

In addition, regulation 31(b) allows us to stop legal aid if

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8.7 Termination of legal aid in cases of false or incomplete information

We may stop legal aid under regulation 32 where, after allowing an opportunity for them to submit representations, we are satisfied that the applicant or assisted person has

In any of these circumstances, and whether or not legal aid is terminated, we have the right to recover its whole outlay from the assisted person concerned. In addition, the assisted person is deemed for the purposes of sections 18 and 19 of the 1986 Act never to have been an assisted person. The consequences of this are that

By virtue of section 35 of the 1986 Act, anyone who seeks or receives legal aid, and

is guilty of an offence. Our Investigations Unit will report direct to the procurator fiscal cases where it appears that there has been a contravention of section 35.

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