Unless otherwise stated , “the Act” or “the 1986 Act” means the Legal Aid (Scotland) Act 1986 , “the 1996 regulations” means the Advice and Assistance (Scotland) Regulations 1996 , “the 2003 regulations” means the Advice and Assistance ( Assistance by Way of Representation)(Scotland) Regulations 2003. “The 2013 regulations” means the Children’s Legal Assistance (Scotland) Regulations 2013 and “the 2011 Act” means the Children’s Hearings (Scotland) Act 2011.
You must use legal aid online to apply for children’s advice and assistance. You must apply online within 14 days of beginning to provide advice and assistance so we can register the grant. If you do not apply online in time, your account is ineligible for payment.
Advice and Assistance can be made available for advising your client (an adult or child with capacity to directly nstruct you) both before and after a children’s hearing. If representation at a hearing is necessary then you can also apply for upgrade the application to Advice by Way of Representation (ABWOR).
Selecting the incorrect category code can delay payment when your account is submitted so it is important that you select the correct category code when admitting clients to advice and assistance.
Children’s Category Code CHSA
The CHSA code covers work under the Children’s Hearings (Scotland) Act 2011, which deals with the Children’s Hearings System including where:
• the social work department (SWD) seeks a Child Protection Order,
• a child is referred to the Reporter
• and for all subsequent proceedings before a children’s hearings and related court proceedings.
The CHSA code does not therefore cover voluntary social work involvement, which falls under S25 of the Children (Scotland) Act 1995.
This CHSA code should therefore be used where the matter concerns a referral to the children’s Reporter or where there is a realistic expectation that a Child Protection Order (CPO) will be sought imminently which will result in the Reporter’s involvement and the Children’s Hearing System.
If, for example, your client wants to withdraw their voluntary consent to their child residing outwith their care and the SWD have advised that they will seek a CPO if this happens, then the CHSA category code should be used.
Civil Category Code of FAM
The FAM code covers civil family issues where there is no other obvious code available. It should be used where there is:
• social work involvement on a voluntary basis
• no referral to the Reporter and/or no Compulsory Supervision Order in place for the child
• no realistic prospect of any CPO being sought by the SWD.
As an example, if you are giving advice to a client on the rights and obligations of the SWD where this involves their child who is residing in voluntary care, or giving advice about contact with their child in voluntary care, then this FAM category code should be used.
Children’s Category Code of CHC
The CHC code covered the Children (Scotland) Act 1995 Part II Chapters 2 and 3 only. This dealt with the Children’s Hearings System, including where the SWD sought a Child Protection Order, where a child was referred to the Reporter and all subsequent proceedings before a children’s hearing and related court proceedings, prior to the introduction of the Children’s Hearings (Scotland) Act 2011. With the exception of ‘fresh evidence’ proofs, where previous grounds established under the 1995 Act require challenge, none of these sections have any application now. While we will be removing this particular category code it is still in place at present so you should avoid selecting it in error.
S25 of the Children (Scotland) Act 1995 does not fall within Part II, Chapters 2 and 3 of the 1995 Act which is why you need to select the codes of CHSA or FAM when dealing with voluntary accommodation of a child in care.
Civil Category Codes of CNT and RES
The civil category codes of CNT and RES covers CONTACT and RESIDENCE. They attract templated increases and cannot be used for any matter that has been referred to a children’s Reporter, even where contact of a child is at issue.
These civil category codes cover private civil proceedings for S11 Orders under Part I of the Children’s Hearings (Scotland) Act 1995. If you use these category codes incorrectly you will not be paid for work carried out even where a template increase has been granted.
Quick guide: category code where social work involved with a child
Type of A&A work
Cat code to use
Social work department seeks a Child Protection Order
The CHSA code covers work under the Children’s Hearings (Scotland) Act 2011, which deals with the Children’s Hearings System
A child is referred to the Reporter
For all subsequent proceedings before a children’s hearings and related court proceedings
Social work involvement on a voluntary basis
The FAM code covers civil family issues where there is no other obvious code available
No referral to the Reporter and/or no Compulsory Supervision Order in place for the child
No realistic prospect of any CPO being sought by the SWD.
‘Fresh evidence’ proof, where previous grounds established under the 1995 Act require challenge
CHC code covered the Children (Scotland) Act 1995 Part II Chapters 2 and 3 only. No sections have any application now except ‘fresh evidence’ proofs.
Cannot be used for any matter that has been referred to a children’s Reporter even where contact/residence of a child is at issue.
Unless directed otherwise, you must answer all mandatory questions (which are shown in red text) on the online application form in full. If you do not answer the question field you will not be able to submit the application. Mandatory fields completed with for example “not applicable” or “not known” will be subject to further checking by us and could lead to delays in the processing of the application.
The limits of disposable income and disposable capital, which determine whether a client is eligible and whether a contribution is due, are specified in regulations and are normally up-rated each year.
To help you assess eligibility we publish a keycard which contains a summary of the assessment rules, the current income and capital limits and the table of contributions. Copies of the up-to-date keycard are available on our website.
Advice and assistance is available, without contribution, provided the client does not have disposable capital over the specified amount, to:
Advice and assistance is also available, subject to payment of a contribution, to any client whose disposable income is within the limits specified in regulations – again, only if they do not have disposable capital over the specified amount. You must take into account their total income, net of tax and national insurance, from all sources for the seven days immediately preceding the application.
Section 11 of the Act sets out the requirement to pay a contribution. The contribution payable is based on the client's disposable income. You collect it and do not pay it to us. Whether you collect the contribution is your own decision. You may ask for it in one payment or by instalments or decide to forgo it. If you put in a claim for payment of fees and outlays out of the Fund, we will deduct the contribution from your account regardless of whether you actually collect it.
You should get documentary evidence of your client’s financial position and tell us what this evidence was. Guidance on verifying financial eligibility is in the keycard.
If you cannot get documentary evidence when you admit your client to advice and assistance, you should see it before applying for an increase unless you can show there is real urgency.
We would recommend therefore that you should see, wherever practicable, the following:
We appreciate that in some circumstances, clients may not have documentary evidence available when consulting a solicitor. Where they do not – for example, in an emergency, where they are part of some acrimonious dispute which prevents access to documentation or where they are in custody or hospital – you may be satisfied from the limited information available but you should then seek verification from the client at the earliest opportunity (unless there is real urgency).
Where however, the client does not produce verification when you have specifically asked them to do so and there is no urgency or apparent difficulties in getting the documents you should tell them again that they need to give you verification of earnings.
Once you have this evidence you should tell us what this was. Keep a copy of this verification on file, so that it can be seen at peer review or at a Board compliance inspection.
If you have not seen any evidence or provided a satisfactory reason why this evidence could not be obtained you may not be paid for the work undertaken including any outlays.
Where advice and assistance is being given about the Children’s Hearing (Scotland) Act 2011 you require to complete and retain on file the online advice and assistance declaration form AA/LAO/CHLA.
You do not have to send us a copy but as part of our audits and quality checks, we will randomly verify that mandates have been signed. If necessary, you may complete the online mandate in the absence of your client. However, it will remain your responsibility to ensure that your client signs and dates the mandate in advance.
Using Legal Aid Online declarations and data capture forms
The online mandate form will enable you to record key information and capture the applicant's and solicitor's signatures. All mandates must be:
In some cases we have also provided a data capture form to capture additional information. We have produced this following feedback and it is designed to help your business processes. It allows the solicitor to record additional information required for the application. The solicitor can then use this to give it to a member of staff to complete online, or dictate the details to a member of staff to complete the application online. The data capture form is not required to be signed or retained.
Print the completed online application – Advice & Assistance only
Instead of using the paper declaration to get a client’s signature, you can print the successfully completed A&A online application online using the option to print the application. This is the simplest and most efficient way to obtain the client’s signature if you are completing the application online while the client is in your office.
At the bottom of the printout, there is a space for the client's signature. Ensure that both the client and solicitor sign and date this and that you keep it in the client’s file.
Where you require to undertake work as a matter of urgency and have received these instructions outwith your office, you can, if circumstances demand, apply for an increase in authorised expenditure over the telephone, provided you can satisfy yourself the client is eligible. Where you have obtained a telephone grant you must as soon as practicallypossible submit an online increase request. Where you have been granted an increase by telephone you will be asked to record details of that telephone call in your online increase request.
You must submit your online advice and assistance intimation application within 14 days of commencing advice and assistance. If you do not submit the online application on time, your account is ineligible for payment. We can only accept late notification if we consider there is special reason.
A client may consult you about several different matters, either at the time of the initial grant or subsequently. Should you deal with all these matters under one grant or should you make further grants? Regulation 8(2)(b) requires you to decide whether the advice and assistance relates to one or more distinct matters in accordance with our guidance.
In terms of the definition of advice and assistance set out in the Act (see Part II paragraph 1.1) you should generally make a single grant of advice and assistance, if necessary seeking an appropriate increase in authorised expenditure.
If you are acting for a relevant person who has more than one child who is the subject of proceedings or anticipated proceedings under the 2011 Act then in general you only need to make one grant of advice and assistance to your one client. You must charge for all justified and reasonable work carried out for your client in respect of their children under one advice and assistance account only. You are providing advice and assistance to your one client and do not therefore have to make separate grants of advice and assistance to your client for each of the children concerned even where, for example, proceedings are discontinued in respect of one child but not another. In this situation, you will still be providing advice and assistance to your client and can continue to charge for this work under the single grant of advice and assistance made to your client at the outset. Occasionally there can be some exceptions to this general rule – for example, where a client’s children attend entirely separate hearings on separate dates and have different care concerns.
the nominated solicitor giving the advice and assistance must make separate grants of advice and assistance in respect of each child as each separate child will be the solicitor’s client and therefore the named applicant (the relevant person or other non solicitor representative will be making the advice and assistance application on behalf of the children and in a representative capacity but the advice and assistance given will be to each child).
If you grant advice and assistance to your client regarding a 2011 Act matter then it is important to know when that grant comes to an end and when another one requires to be made. A child can be subject to a Compulsory Supervision Order for many years and one grant of advice and assistance to advise for all those years is not appropriate.
Please refer to paragraphs 5.26 to 5.30 of Chapter 5 in this Part of the Handbook for guidance as to when a fresh grant of advice and assistance requires to be made to your client in the children’s hearing process. These paragraphs have equal application to advice and assistance even where you do not seek ABWOR for representation at a court or childrens hearing.
Section 10 of the Act, as amended, provides a limit of £95.
Where you believe the cost of the work is likely to exceed the £95 limit, you must submit an online increase request to us for authority to exceed the limit.
You must give us:
• a summary of the work already done
• details of the further work that will be done if we grant the increase
• a breakdown of any significant costs involved
• details of the existing limit, that is, either the £95 initial limit or any increased limit already authorised
• enough information to enable us to decide whether it is reasonable to grant the increase.
We will refuse the request or grant a smaller increase if we are not persuaded that the increase sought is reasonable. We may impose conditions on the advice and assistance and limit the subject matter dealt with.
An application for an increase to advise your client on how to take steps in instituting, conducting or defending proceedings or to help them take those steps (as opposed to taking the steps on their behalf) should address factors such as:
It may help you in your approach to increases if you think of us as a private client of modest means. Such a client will want to know why the particular work is needed, what benefit they will get from it, what it is likely to cost them and whether there is a more cost-effective way to do it. We need the same information to satisfy us the request for an increase is reasonable.
In dealing with a request for an increase, we will look at each case on its own merits. 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.
If we refuse a request for an increase, you can ask for a reconsideration of our decision by submitting an online reconsideration request with additional information. If it becomes clear that we will not grant any further increases and you have reached the limit of the authorised expenditure, you should tell the client that advice and assistance has ended and that they will have to pay for any further work privately.
If the matter is extremely urgent and you need an increase immediately you can ask for this by telephoning our the Children’s Legal Assistance Unit. Outwith normal office hours calls may be made to 0771 1424 344. Where a telephone grant is made, you should submit an online increase request within 7 days or whatever other period may, in the circumstances, we consider reasonable.
We cannot, in terms of the Act and regulations, retrospectively grant an increase in authorised expenditure under advice and assistance. In the case of Drummond & Co. -v- Scottish Legal Aid Board 1992 SC(HL)1, the House of Lords accepted that the Board’s prior approval was required. If you do work that exceeds the limit in force before an increase is granted, we will abate charges for that work from any account you later send us.
When the applicant is a child (defined in regulation 2 of the 1996 Regulations as having the meaning in section 199 of the 2011 Act ), the application may be made on their behalf by
• any person having parental responsibilities within the meaning of section 1(3) of the Children (Scotland) Act 1995 in relation to the child, or
• any person in whose care they are, or
• a person acting for the purpose of any proceedings as their tutor (that is, guardian) or curator.
This provision is without prejudice to any right of a child to apply on their own behalf or to authorise some other person to apply on their behalf
Their right to apply for advice and assistance may arise by virtue of the Age of Legal Capacity (Scotland) Act 1991 (the 1991 Act), and the presumption contained in it, or otherwise.
If a child consults you on a children’s matter relating to the children’s hearings process and any related court proceedings, you must form a view of the child's general understanding of what it means to instruct a solicitor about the children’s matter.
• You may consider that an individual child under 12 has such a general understanding, and feel able to accept instructions directly from them.
• You may consider a child of 12 or more does not have a general understanding of what it means to instruct a solicitor. If so, the presumption
otherwise applying for a child of that age under the 1991 Act will, in effect, be rebutted. In that event, you should look to a parent or relevant person or other responsible person for instructions.
If you notify us of an advice and assistance grant bearing to have been made to and signed 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 the name of the child.
If you notify us of an advice and assistance grant bearing to have been made and signed by a child aged under 12,you will be asked if you are satisfied that the child has a general understanding of what it means to instruct a solicitor. If you are not satisfied you will not be permitted to proceed with the on-line submission. If you are satisfied we may at a later stage query this with you and ask you to provide further information in this respect. This may occur, for example , where the child is very young.
Unless you are acting in a representative capacity, a child of, say, six months cannot give direct instructions to you acting as a solicitor.
There is no provision in the advice and assistance regulations for transferring grants of advice and assistance. However, we have an administrative arrangement for doing so. Although a grant of advice and assistance is essentially personal to the individual solicitor who made the grant, we will record a change in the nominated solicitor in certain circumstances. This avoids the need for a second application for advice and assistance and the client possibly having to pay a second contribution. We will do this (subject to the exception set out below) only where the case is to remain with the same firm of solicitors because the nominated solicitor has:
The criteria are that:
The exception is if a sole practitioner has to engage a locum solicitor who, during the sole practitioner’s absence, sees an individual who is eligible for advice and assistance. The locum gathers information about their eligibility and must be satisfied that the individual is financially eligible. A grant of advice and assistance is, therefore, not put in the name of the sole practitioner. The locum will, however, only be acting for a short time and the sole practitioner, on returning to the office, will usually want to take over acting for the client.
The criteria to be applied in this situation are:
When intimating a change of the solicitor providing Children’s advice and assistance:
In all other situations where a client seeks advice from a second or subsequent solicitor on the same subject matter, they must get our permission to instruct another solicitor and to make a fresh application for advice and assistance (see regulation 13(1)).
A client cannot be given advice and assistance on the same matter by more than one solicitor without our prior authority. Regulation 13(2) states that the application for authority must:
No work is chargeable until we grant this authority. The effective date of the second grant of advice and assistance is, therefore, the date of our decision to grant authority, not the date of the solicitor’s declaration.
If you wish to stop giving advice and assistance to a client for a particular matter you must:
If your client wishes you to do further work for them, and advice and assistance has ended (for example, after we have refused a request for an increase in authorised expenditure both initially and on reconsideration), they are free to discuss whether to become a privately paying client.
However, to become such a client:
You cannot give your client advice privately while the grant of advice and assistance is continuing.
Section 7(2) prohibits the provision of advice and assistance in connection with proceedings before a court or tribunal at a time when the client is receiving legal aid in connection with those proceedings. So, if an applicant has been granted children’s legal aid, they cannot also receive advice and assistance in connection with those proceedings.
It is unlikely the legal aid provisions about property recovered or preserved (“clawback”) and “hardship” will ever arise in advice and assistance given in relation to the Children’s Hearings (Scotland) Act 2011. However, if it does become relevant, you should refer to chapter 7 of the Civil Legal Assistance Handbook, or contact a member of our Legal Services Department to discuss whether it does apply.