THE ADVICE AND ASSISTANCE AND CIVIL LEGAL AID (TRANSFER OF TRIBUNAL FUNCTIONS) (NO. 1) (SCOTLAND) REGULATIONS 2010
2010 No. 166
28TH April 2010
Laid before the Scottish Parliament
29th April 2010
Coming into force
9th June 2010
The Scottish Ministers make the following Regulations in exercise of the powers conferred by sections 12(3), 17(2B), 33(2)(a) and (3) and 36(1), (2)(a), (c), (g) and (h) and (3)(e) of the Legal Aid (Scotland) Act 1986 and all other powers enabling them to do so.
1. These Regulations may be cited as the Advice and Assistance and Civil Legal Aid (Transfer of Tribunal Functions) (No. 1) (Scotland) Regulations 2010 and come into force on 9th June 2010.
2. The following regulations apply only in relation to proceedings in relation to which civil legal aid or assistance by way of representation was made available on or after 9th June 2010.
3. 1) Paragraphs (2) and (3) apply where, under the Legal Aid (Scotland) Act 1986—
(a) assistance by way of representation has been provided in relation to proceedings before the First-tier Tribunal or the Upper Tribunal; and
(b) the Board finds that the provision—
(i) was not (wholly or partly) in accordance with the relevant rules applying by virtue of that Act; or
(ii) was otherwise unjustified in the circumstances of the case (including by reason of inadequate assessment or verification of any relevant factor).
(2) In considering whether or not the provision was in accordance with those rules, the Board may have regard to any relevant guidance it has issued in relation to their application.
(3) The Board may—
(a) withhold (wholly) payment from the Fund in respect of the provision; or
(b) if such payment has been made, fully recover it.
4. In regulations 5(3) and 10(2) of the Civil Legal Aid (Scotland) (Fees) Regulations 1989, for “Child Support Commissioners” substitute “Upper Tribunal”.
5. In regulation 16(2) of the Advice and Assistance (Scotland) Regulations 1996—
(a) in sub-paragraph (l), omit “the Child Support Commissioners or”; and
(b) after sub-paragraph (l), insert—
“(m) to any payment of money in accordance with an order made by the Upper Tribunal in relation to proceedings described in regulation 5A(d) of the Advice and Assistance (Assistance by Way of Representation) (Scotland) Regulations 2003 or under any settlement arrived at to prevent or bring to an end proceedings in which such an order may be made.”.
6. —(1) The Civil Legal Aid (Scotland) Regulations 2002 are amended in accordance with paragraphs (2) to (6).
(2) In regulation 4(1)(k) omit “and the Child Support Commissioners”.
(3) Omit regulation 18(2)(w).
(4) In regulation 21(1)(c) for “Child Support Commissioners” substitute “Upper Tribunal”.
(5) In regulation 33(a)(xi) omit “the Child Support Commissioners or”.
(6) In regulation 47—
(a) in the heading to that regulation omit “and Child Support Commissioners”; and
(b) omit “or the Child Support Commissioners”.
A member of the Scottish Executive
St Andrew’s House,
28th April 2010