Handbooks Index


Criminal handbook - Table of contents

Introduction


Part 1 - Registration, compliance and quality assurance


Part 2 - Outline of steps involved in criminal legal assistance


Part 3 - Carrying out criminal legal assistance

Chapter 1 - Availability of advice and assistance

Chapter 2 - Advice and assistance application procedures

Chapter 3 - ABWOR in summary criminal proceedings

Chapter 4 - ABWOR in other criminal proceedings

Chapter 5 - ABWOR in parole board proceedings

Chapter 6 - Increases for advice and assistance and ABWOR

Chapter 7 - General availability of criminal legal aid

Chapter 8 - Automatic availability of criminal legal aid

Chapter 9 - Duty solicitor arrangements

Chapter 10 - Court applications - criminal legal aid

Chapter 11- Summary - applications to SLAB

Chapter 12 - Summary - financial eligibility

Chapter 13 - Solemn - applications to SLAB

Chapter 14 - Solemn - financial eligibility

Chapter 15 - Appeals - applications to SLAB

Chapter 16 - Post grant work and work needing prior approval

Chapter 17 - High cost and complex cases

Chapter 18 - Change of solicitor

Chapter 19 - Termination of criminal legal aid

Chapter 20 - Proceeds of crime


Part 4 - Contempt of court


Part 5 - Fixed payment accounts


Part 6 - Detailed accounts


Part 7 - Contact and complaints


Part 8 - Legislation


a

Criminal handbook

Part 3: Carrying out legal assistance


Chapter 2

Advice and assistance application procedure

2.1 Completing the advice and assistance application
2.2 Eligibility limits
2.3 Assessment of eligibility
2.4 The applicant’s declaration
2.5 Verification of financial eligibility and contributions
2.6 Where documentary evidence is not available
2.7 Giving details of evidence seen in the increase application
2.8 Custody cases
2.9 Cited/Undertaking Cases, where the Client is not in Custody
2.10 The Client’s Responsibilities
2.11 Capital - check it first even if client receives a passport benefit
2.12 Capital: Documentary Evidence
2.13 Income
2.14 Verification of Passported Benefits
2.15 Cases where no documentary evidence of eligibility is immediately available
2.16 Verification in Prisoners’ Cases
2.17 Age of Documentary Evidence
2.18 Client Mandate - where it is not practicable to see verification of income or capital at the outset
2.19 Contributions
2.20 Telephone grant
2.21 Notice to the Board
2.22 Multiple grants of advice and assistance
2.23 Examples of cases where it is not appropriate to make more than one grant of advice and assistance
2.24 Basic limit of expenditure
2.25 Exceeding the initial limit
2.26 Applying for authority to exceed the limit
2.27 Urgent requests
2.28 Reconsideration of requests for increases
2.29 Supporting documentation for requests for increases
2.30 Increases in authorised expenditure cannot be made retrospectively
2.31 Advice to children
2.32 Change of nominated solicitor
2.33 Criteria for allowing a change of solicitor in advice and assistance cases (not ABWOR)
2.34 Procedure for changing solicitor
2.35 Second solicitor giving advice and assistance on the same matter
2.36 Procedure for withdrawing from giving advice and assistance
2.37 Can advice and assistance be given at the same time as criminal legal aid?
2.38 Grant of advice and assistance subsumed in subsequent grant of ABWOR or criminal legal aid
2.39 Exceptional police custody visit
2.40 Outlays for third parties incurred under advice and assistance
2.41 Private charging after a grant of advice and assistance
 

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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 Advice and Assistance (Scotland) Regulations 1996


2.1 Completing the advice and assistance application

You can make an online criminal advice and assistance application, both for general advice and assistance and standard advice and assistance. Use it for:

  • telling us you have granted general advice and assistance cases before a direct measure or summary complaint has been served, or if the direct measure is accepted (initial authorised expenditure £35);
  • telling us you have granted standard advice and assistance following the issue of a summary complaint or if the direct measure is challenged (initial authorised expenditure of £90);
  • telling us you have granted ABWOR for a JP court case on a block fee basis (£185);
  • telling us you have granted ABWOR in the sheriff court or stipendiary magistrates court case (£550);
  • telling us you have granted ABWOR for Parole Board proceedings, or other breach proceedings under regulation 3 or 4 of the Advice and Assistance (ABWOR) (Scotland) Regulations 2003 as amended (£90 or £165 as appropriate);
  • asking for our approval to provide ABWOR in a case involving removal of a disqualification from driving, or proceeds of crime.
  • You can make an online criminal advice and assistance increase application for:
  • requests for increases in expenditure
  • telling us you have granted ABWOR following an initial grant of advice and assistance
  • asking for our approval to grant ABWOR.

If you grant general or standard criminal advice and assistance, you must send the online application within 14 days of beginning the advice and assistance. If you have to apply to us for approval to give advice and assistance, the advice and assistance only begins on the date we grant your request.

It is important that you refer to the category codes card when providing advice and assistance. The category codes card lists all the codes for criminal matters, showing the initial limits that apply and, where applicable, the limits that apply to ABWOR and any merits tests applying to ABWOR. If you enter an inappropriate category code, you may have difficulty getting increases, using the online system and getting your account paid timeously.

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2.2 Eligibility limits

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. The Keycard is available on our website.

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2.3 Assessment of eligibility

Advice and assistance is available, without contribution, provided the client does not have disposable capital over the specified amount, to

  • any client who is (directly or indirectly) receiving:
  • income support
  • an income-based jobseeker’s allowance or
  • an income related employment and support allowance
  • Universal Credit
  • any client whose disposable income (for the seven days up to and including the date of application) is below a specified limit as shown in the keycard

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.

If, regardless of their income, the client has disposable capital over the specified amount, you cannot give them advice and assistance.

Paragraphs 2.6 to 2.8 set out in more detail the information we expect you to get from your client to assess their financial eligibility. Paragraphs 2.9 to 2.12 explain about contributions that your client may have to pay.

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2.4 The applicant’s declaration

For every online advice and assistance application you must obtain and retain the client’s signature, to be stored in your office.

You can do this by either printing the completed online application (A&A only) or the client online declaration.

You can download the client online declarations from our website.

You do not have to send us a copy, but as part of our audits and quality checks, we will seek verification that applications or declarations have been signed. If necessary, you may complete the application in the absence of your client. However, it will remain your responsibility to ensure that your client signs and dates it.

The applicant must

  • read the declaration before signing it
  • insert the date when they actually sign the declaration
  • not be asked to sign the declaration on a form in which (subject to the comments in paragraph 2.2) any boxes are left blank or answers altered.

The applicant’s signature should not be altered or written over an erasure. Any amendments should be initialled by the applicant.

The date of the declaration is important. It is linked to the seven day period in which disposable income is calculated. Altering the date of the declaration changes that period and means the client could run the risk of making a false disclosure if their financial circumstances changed.

Failure to follow these procedures may amount to a breach of our Code of Practice in relation to criminal legal assistance

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2.5 Verification of financial eligibility and contributions

Solicitors are only allowed to provide advice and assistance if they have satisfied themselves that the client is eligible under the provisions of the Act and regulations. The client’s disposable income and disposable capital must be within the limits set by the regulations in order to be financially eligible. In assessing the client’s disposable income and disposable capital the solicitor is required by the regulations to have regard to guidance provided by the Board.

The purpose of this guidance is to help solicitors comply with the regulations so that the Board is able to properly pay accounts. This sets out the situations where solicitors need to see financial verification in criminal advice and assistance and criminal ABWOR cases, and in particular, what we regard as necessary and practicable for solicitors to obtain by way of financial and other documentation to enable us to pay for the work done. The guidance also follows on from the Law Society’s protocol on Advice and Assistance Verification, issued to the profession on 22 February 2010 which they developed following discussions with the Board.

Similar guidance was issued last year for civil advice and assistance cases. Whilst the statutory requirements are now similar for civil and criminal cases, this guidance does recognise that some of the arrangements have to be different for criminal cases, due to the different circumstances which can often lead to the provision of criminal advice and assistance and ABWOR.

Also attached to these guidelines is a model mandate which can be used to obtain clients’ authorisation to allow you to contact employers, banks, DWP, etc if they do not provide you with adequate verification themselves. This mandate will be added to the standard criminal advice and assistance/ABWOR Legal Aid Online client declaration form (AA LAO CRIM).

The requirements in summary are:

  • you must assess a client’s financial eligibility except in the limited cases where the financial test does not apply;
  • clients who are on benefits or who have no income must still be asked about any disposable capital;
  • you must get financial verification in the form of documentary evidence of income and capital, where this is necessary and practicable;
  • Where possible in a criminal case, you should try to obtain verification of financial circumstances before starting to work for the client. However, we recognise that this may not always be possible eg for a client in custody. Where this is not obtained, the Board may be required to withhold payment of your account by reason of inadequate verification.
  • Where this is not immediately practicable, the client must be asked to provide this as soon as possible, and sign a mandate allowing you to obtain verification directly from the employer, benefits agency, bank etc should this not materialise.
  • For clients receiving passported benefits (income support, income-based jobseeker’s allowance, an income-related employment and support allowance or Universal Credit ) we will check they are in receipt of these benefits and have an electronic link with the Department for Work and Pensions (DWP) to do this. However, to do this, we must have the client’s National Insurance number, benefit claimed and date of birth – if any of these elements are incorrect or not supplied we will be unable to perform this check). We need the same details for the spouse or partner if they are claiming the benefit;
  • You should keep the evidence of financial eligibility on file.
  • You cannot charge for any time or work involved in getting this information, assessing financial eligibility or writing for verification.
  • We are not able to pay accounts for work done where solicitors have not met the statutory tests.

In June 2008, new responsibilities were placed on solicitors to obtain financial and other documentation by Articles 2A (2) of Schedule 2 of the Advice and Assistance (Scotland) Regulations 1996, as amended. This states:

“The solicitor must, for the purposes of ascertaining the capital and income of the person concerned –

(a) so far as necessary and practicable, obtain from that person financial or other documentation; and

(b) take such other reasonable steps as are necessary.”

This makes it clear that a solicitor is obliged to obtain financial or other documentation for the purpose of ascertaining the capital and income position of the person concerned.

The Advice and Assistance (Scotland) Amendment Regulations 2010, in force from 31 January 2011, introduced similar requirements in civil and children’s cases, and similar guidance for these cases was issued by the Board in January 2011. The regulations give the power to the Board to withhold payment from the Fund or if payment has been made to recover it if payment is unjustified by reason of inadequate assessment or verification of any relevant factor.

This guidance has been prepared by the Board after consultation with the Law Society and individual practitioners and sets out approaches consistent with existing good practices already in place in many firms. We identified the existing best practices set out in this guidance in discussions with and on visits to practitioners and representative bodies. The guidance on verification of financial eligibility is also consistent with the approaches adopted by the legal aid authorities in other jurisdictions in the UK and beyond.

The guidance is not intended to act as a barrier to access to justice nor to penalise practitioners who have acted and proceeded in good faith and we have, as a result of our consultations with practitioners and the Society, attempted to identify the difficulties that practitioners may encounter in certain circumstances or types of cases and to set out how such situations should be addressed. We welcome comments on any such areas that practitioners believe we have not yet addressed.

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2.6 Where documentary evidence is not available

The qualification in the regulations that verification should be obtained “…so far as necessary and practicable…” clearly suggests that there are some cases where the obligation to obtain financial or other documentation does not apply. We have set out below what “necessary and practicable” means.

“Necessary”.

There are some limited criminal ABWOR cases where it is not “necessary” to obtain this documentation (see below). This is because these categories involve no consideration of financial eligibility for advice and assistance, that is there is no means test to be applied. It does not mean, for example, that a solicitor may simply take the view that it is not necessary because they had already come to the view that their client was financially eligible. The regulation obliges the solicitor to “ascertain” the position which means more than just forming a view. Under section 2A (2) of Schedule 2 of the Advice and Assistance (Scotland) Regulations 1996 you must, where practicable, get “financial or other documentation” for all grants of criminal advice and assistance or criminal ABWOR where a financial test applies. The only exceptions are criminal ABWOR cases for:

  • obstructive witness order under sections 90B-90E of the 1995 Act (category (OBWI);
  • a warrant for further detention or extension under the Terrorism Act 2000 (category TERF);
  • proceedings under section 5 of the Protection from Abuse (Scotland) Act (category BIA – custody appearances following a breach of interdict arrest).

The application of the financial test applies in all other types of criminal advice and assistance or ABWOR, including when provided on application of the interests of justice test, or as an appointed solicitor. This guidance sets out the position where it is “practicable” to obtain financial verification, and what other reasonable steps you should take where it is not practicable to obtain financial verification before granting criminal advice and assistance or ABWOR.

“Practicable”

There may be cases where the relevant financial or other documentation does not exist or cannot immediately be accessed, for example when the client is on remand or appearing from custody, and in such cases we accept that the documentation may not be available, at least initially.

It is the responsibility of the solicitor to demonstrate why it is impracticable to obtain the financial and other documentation.

However, even if it is not practicable for the solicitor to obtain financial and other documentation, he/she is still obliged by the regulations to “take such other reasonable steps as are necessary” to establish the client’s financial eligibility. Such other reasonable steps include, but are not limited to, using the mandate attached to this guidance to allow the solicitor to obtain information from third parties, such as employers, banks and benefits agencies.

It is important to note that failure to obtain financial and other documentation to verify the financial eligibility (relating to both income and capital) of applicants when it is necessary and practicable to do so or to have taken other reasonable steps will result in non-payment from the Fund or recovery of amounts paid.

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2.7 Giving details of evidence seen in the increase application

The general position is that documentary evidence of financial eligibility should be obtained as early as possible, preferably at the initial meeting unless there is real urgency, and retained on file. Where this is not possible in a criminal case, if verification is not subsequently obtained, the Board may be required to withhold payment of your account by reason of inadequate verification.

Solicitors should encourage clients to bring the required documentation with them to first appointments, and many firms build such arrangements into their administrative procedures for making appointments. If clients forget or fail to bring documents such as bank statements, our discussions with practitioners and banks showed that alternative documents can be obtained quickly and at no cost. For example, ATM mini-statements may show sufficient information to allow you to be satisfied as to eligibility. If clients do not have bank statements or they do not cover the appropriate 7 day period then most banks will immediately provide at the counter free of charge a balance/transaction screen print on request for a specified period of time at no charge. This should not be confused with a request for a duplicate statement, where banks may well charge.

For post office accounts, it appears that statements are issued less frequently than bank accounts, and so clients are less likely to have up to date statements available for you. In addition, whilst counter/screen-prints are available at no cost from most banks this facility is not available at post offices. There are a number of solutions to these apparent problems:

  • Statements can be ordered by clients, at no cost, for any period by telephone. The call centre number is 08457 223 344.
  • Alternative verification is available for benefits. The client may have a recent award letter and/or for passported cases we can carry out direct checks with the DWP.

Solicitors are not able to charge for any time or work involved in obtaining information about financial eligibility, assessing financial eligibility or for the cost of writing for any verification. Up to date information about eligibility limits is available in the Keycard which is available at our website www.slab.org.uk

Solicitors should obtain a signed mandate from the applicant allowing enquiries to be made of third parties such as employers, benefits providers and banks and should use this to obtain any necessary documentary evidence not supplied by the applicant. We have attached a mandate to this guidance which can be used for this purpose. The solicitor should not, however, start to act until he is satisfied as to eligibility.

Where a solicitor has to use this mandate as the client has not provided verification of financial circumstances, the solicitor should be careful about admitting the same client to any subsequent grants of criminal advice and assistance or criminal ABWOR, without first seeing financial verification.

Where meetings are being held with clients by appointment, our discussions with the profession have shown that those firms most likely to obtain supporting documentation are those with procedures in place and consistently applied that include an explanation to the client when the appointment is made about what documentation is required and that it should be brought to the first meeting. Practitioners will be familiar with similar requirements relating to money laundering whereby they are required to obtain similar documentation before proceeding to act for a client. If a client fails to bring the requested documentation to the first meeting but the solicitor is nonetheless satisfied as to their financial eligibility, for example because of a long-standing solicitor/client relationship, and decides to admit the client to advice and assistance, it is important that there are clear and well-applied procedures in place for following-up any undertaking to produce the required documentation at any later date or meeting, because we may not pay if the client fails to produce the documentation.

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2.8 Custody Cases

If the client is serving a sentence or on remand, and received no income during the previous seven days, you should:

  • enter their income as “Nil”
  • at the question on how they are supported answer “Serving a sentence” or “On remand” as appropriate.

However, you must be clear that they did not receive any income during this seven day period, especially if they are paid monthly. You must also ask them about any savings or other capital they could use to fund their case.

If you are seeing a client at a police station or in the custody court, you must assess their income and capital, unless you are providing automatic legal aid under the duty scheme. Verification will be difficult, but you must still obtain sufficient information from the client to be satisfied they are financially eligible. Clients should be told to provide verification at the earliest opportunity, and should sign a mandate allowing you to contact their employer, bank, benefits agency as appropriate if this is not provided within 14 days. (An example of a mandate which can be used is attached to these guidelines.) Where the client remains in custody during the duration of the case, and it is therefore not practicable to see verification, we should be advised of this in the application.

In police station interviews, the Advice and Assistance and Civil Legal Aid (Financial Conditions and Contributions) (Scotland) Amendment Regulations 2016 came into force on 1 April 2016 removing all client contributions from grants of Advice and Assistance made in connection with police interviews.  A&A is therefore available and free to all clients being interviewed in police stations.  No financial tests need to be applied, and the question of verification of financial circumstances no longer applies in these cases.  Client contributions have only been removed from Advice and Assistance given at police stations to clients who are held under Section 15A. The financial tests and client contributions remain for the time being for clients in police stations who have already been charged.

 

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2.9 Cited/Undertaking Cases, where the Client is not in Custody

We would normally expect that it would be practicable for clients to bring financial verification with them when they see you at a first appointment. When making appointments, clients should always be told to bring verification of income and any savings. This will help save solicitors time in verifying income and capital. You must not start to act until you are satisfied as to financial eligibility, by having seen verification. Many clients will be repeat clients, so the onus lies with you to make this known to them. However, we recognise that there will be occasions when clients do not have verification of their financial circumstances, but you need to start or continue acting for your client having regard to the wider interests of the justice system, for example if a court appearance is imminent.

In these situations the client should be told to provide verification at the earliest opportunity, and must sign a mandate allowing you to contact their employer, bank, benefits agency as appropriate if this is not provided within 14 days. When you get the mandate or verification, it should be copied and retained on file.

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2.10 The Client’s Responsibilities

It is important that clients are made aware of their responsibilities. Their entitlement to publicly-funded legal assistance is not unqualified. It is subject to their meeting certain criteria, and the obligation rests with them to evidence that that they do indeed meet the criteria, in the same way that they have to in order to access other public services, such as the acquisition of benefits, a passport or a driving licence.

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2.11 Capital - check it first even if client receives a passport benefit

We recommend that you establish the client’s capital position first, as it can sometimes be easier to do (for example by simple examination of a bank statement) and because it allows the opportunity to address any misunderstandings about eligibility. If the client does not have or forgets to bring their bank statement, as noted above they may alternatively be able to obtain an ATM mini-statement or balance/transaction screen-print.

At the date of issuing this guidance (July 2012) if the client’s capital exceeds £1,716 they are ineligible for advice and assistance, regardless of the level of their disposable income unless the disregard for applicants of pensionable age applies. The Keycard, which is available in our website www.slab.org.uk provides details of current eligibility levels. They are also ineligible even if they are in receipt of a passported benefit. This point is important to note as many applicants, and some solicitors, have mistakenly thought that the receipt of a passported benefit in itself demonstrates that the client is financially eligible for Advice and Assistance.

It is possible to hold capital significantly in excess of £1,716, in some cases up to £16,000 (again as at July 2012) can be held and the client can still qualify for a range of benefits, including passported benefits, so it should never be assumed that an applicant is financially eligible because they receive a passported or any other benefit. Indeed, up to £6,000 can be held with no effect on entitlement to any of the passported benefits, any excess between £6,001 and £16,000 affecting not eligibility for the benefit but the amount paid.

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2.12 Capital: Documentary Evidence

The best evidence of capital held in the form of bank deposits or savings accounts is sight of a statement or passbook, whilst for shares, ISAs or other savings/investments you should see any available certificates or statements.

You should not be satisfied only by the production of a bank statement.

You should specifically ask whether the applicant has other forms of capital, such as savings or investments accounts, and if they do you should see evidence of those.

Many applicants may no longer have paper bank statements but may instead have on-line banking facilities or a banking app. In such cases you should still view the statements but we accept that there may be no paper copy for you to retain. If the verification you have undertaken has been by way of viewing a balance and transactions on-line or via an app you should note this on the application

Capital is not limited just to money held in a bank or building society account. It includes items such as:

  • all land and buildings the client or their partner own, other than the client’s main home, including interests in timeshares.
  • money in a bank, building society, post office, credit union, premium bonds, national savings certificates etc.
  • investments, shares, bonds, ISAs etc
  • insurance policies that can be encashed
  • the value of other non-essential possessions, such as a boat, a caravan, second car, jewellery (but not wedding or engagement rings), antiques or items bought for investment
  • money owed to the client or their partner
  • money due from the will of someone who has died
  • money due from a trust fund
  • money that can be borrowed against business assets
  • redundancy payments.

A key element as to whether items have to be taken into account as disposable capital is how easily any items could be used to fund legal advice.

We accept that if a client says that they do not have any of the above then it is difficult for you to obtain evidence of that negative position. If you can obtain any such evidence, you should retain it in file, but you should be able to show that you have asked about each of these items. The online declaration form AA/LAO/CRIM, allows the client to confirm his/her capital position. If the client has no capital, the declaration requires them to confirm this. When submitting the application you should indicate that you have seen verification of capital by way of this declaration.

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2.13 Income

The client and/or their partner’s income is likely to come from one of three sources:

  • Employment
  • Self-employment
  • Benefits (either passported or non-passported)

You may also encounter applicants who declare no income. It is important that such applicants are asked to explain on what basis they support themselves. For all of the above, including those declaring no income, good information about income and outgoings can be obtained from bank statements, so it is always advisable to ask the applicant to bring their statement. If an applicant claims to have no bank account you should decide if this is likely and reasonable and record on what basis you accepted the position. You may be satisfied from the information seen on a bank statement that the applicant is eligible for Advice and Assistance, but we have set out details below of the types of documentation you may wish to see as an alternative to or in addition to a bank statement:

Employed applicants

The latest bank statement is the best evidence, but you may also be satisfied if you were to see alternative documentation such a wage slip, a recent letter of appointment that confirmed the salary, other correspondence from an employer or a very recent P60. Remember to check that the income amounts shown on any bank statements are consistent with the income amounts advised by your client.

When you are able to see a bank statement, it is important to remember that the only allowable deductions from pay in advice and assistance are tax and national insurance. Some employees may have other significant deductions made at source. For example those working in financial services may have their mortgage repayments deducted directly from their salaries by their employers. It is important, therefore, that if you intend to use a bank statement as evidence of earnings that you check with the client that there are no significant deductions from pay other than those allowed by regulation. When there are such deductions you should obtain additional documentary evidence such as the payslips.

Self-employed applicants

Business accounts, bank statements (personal and business) or recent audited accounts are helpful in evidencing income, but in the absence of these the onus is on the applicant to demonstrate his income to your satisfaction. The amount and quality of documentation available may depend on how long and to what extent the business has been trading. We do not expect you to undertake detailed analysis of accounts, but we do expect you to have seen bank accounts to show the sort of income and capital being taken from the business and to have formed a view as to financial eligibility or to have seen an accountant’s projection of such matters if that is available.

Non Passported Benefits

The Board is unable to check the non passported benefits which some clients will receive.details of these benefits are given in the Keycard which is available at our website www.slab.org.uk.)

However, most benefits are paid directly into bank or post office accounts, so bank statements are once again a good source of information and verification. Alternatively you may be able to see the most recent award letter or other correspondence from the Benefits Agency. The next section of this guidance explains the direct link we have with the Benefits Agency with regard to verification of passported benefits.

No income

When an applicant declares no income, you should still, take reasonable steps to verify this. You need to obtain adequate, verifiable information about how they live in the absence of any income. For example, if they claim to be supported by a family member, you need to know who that person is to be able to check that. You should ask to see a bank statement in all cases to ensure that there is indeed no income or capital. If the applicant claims to have no such account, and you are satisfied, you should record this. If the applicant is a young person living with their parents you may either ask for confirmation of that from the parents or form a judgement that the age and circumstances of the applicant make this likely to be true. For older applicants you should ask and record how they support themselves in the absence of any income and form a view as to whether this is credible. You should record the basis for your decision.

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2.14 Verification of Passported Benefits

It remains your responsibility to satisfy yourself that the applicant is financially eligible. However, we have a direct link with the Department for Work and Pensions, which allows us to check cases where the client is receiving passport benefits – that is, income support, income-based jobseeker’s allowance, income-related employment support allowance or Universal Credit.  Where a client tells you they receive one of these benefits, we will be able to confirm this via the link and to inform you promptly of any information to the contrary from DWP records, but you must provide the client’s national insurance number and date of birth on the form to allow us to do this.  You must also provide this information in respect of any spouse or partner via whom the benefit is paid.  Please remember that not all clients in receipt of passported benefits may be eligible for advice and assistance or ABWOR if their disposable capital exceeds the £1,716 threshold.

If the link is unable to confirm that the applicant is in receipt of the benefit they claimed to be in receipt of, we will treat the income status as not yet having been verified and will contact you for further information.

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2.15 Cases where no documentary evidence of eligibility is immediately available

Although the general position is that you should not act until you have verified your client’s capital and income by seeing documentary evidence, we recognise that there will be occasions when clients do not have verification of their financial circumstances, but you need to start or continue acting for your client having regard to the wider interests of the justice system, for example if a court appearance is imminent.

There may also be difficulties in obtaining documentary evidence from applicants with literacy or mental health issues and/or chaotic lifestyles, but in even these cases you should seek documentary evidence and if it is not obtainable clearly explain to us on what basis you have admitted the client to A&A/ABWOR.

However, in even some of these situations the inability to produce documentary evidence may be only temporary and you should continue as the case progresses to seek the appropriate documentary evidence and continue at each application for an increase to explain why it is not reasonably possible to obtain documentary evidence of financial eligibility. In such cases, if you have provided us with adequate information during the case and acted diligently and in good faith on the circumstances of the case and the information provided by your client and it later transpires that the client is ineligible, we will honour the increases that we granted and assess and pay your account accordingly, but would seek repayment from your client.

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2.16 Verification in Prisoners’ Cases

Practitioners should bear in mind that the resources of spouses and partners have to be taken into account when assessing financial eligibility except where the spouse or partner has a contrary interest in the case, (co-accused, complainer or Crown witness), the parties are living separate and apart, or in all the circumstances of the case it would be inequitable or impractical to do so.

The parties are not “…living separate and apart…” for the purposes of assessment of financial eligibility solely on the basis that the applicant is in prison. For the parties to be “…living separate and apart…” and the spouse or partner’s financial resources to be disregarded the marriage or relationship must be at an end.

You need, therefore, in prisoner cases to satisfy yourself as to the spouse or partner’s financial resources and to obtain the verification described in this guidance unless one of the three exceptions set out in the previous paragraph apply.

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2.17 Age of Documentary Evidence

What is to be established is the financial position of the applicant in the seven days prior to being admitted to A&A/ABWOR. Ideally, therefore the documentation concerned should specifically cover that period of time, but we accept that this will not always be possible for a number of reasons. For example, many wage-slips and bank statements are only issued once per month, and benefit awards/confirmatory letters may only be issued annually.

In addition to the documents, you should ask the applicant that there have been no changes since the date of the document, such as a substantial change to the balance shown on a bank statement. You should retain a note of any such questions asked and the responses provided that satisfied you as to the client’s financial eligibility and you should make use of the mandate allowing you to make enquiries of third parties when necessary.

The most up-to-date information should be provided but if more recent documentation becomes available at a later date, you can update the applicant’s financial information by sending us an online ‘Verification Update’. The system will re-assess eligibility and, if necessary, re-calculate any contribution payable by the applicant.

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2.18 Client Mandate - where it is not practicable to see verification of income or capital at the outset

Clients who are arranging appointments by telephone should always be asked to bring verification of income and savings. Similarly, clients who are first seen in your office without an appointment, at court, or in court should also be asked to supply verification of income and savings at the earliest opportunity.

In situations where it is appropriate to act for clients without seeing verification when it is in the interests of not just the client, but also the wider justice system, the client must be advised of the need to provide verification as soon as possible. The client must sign the following mandate before being admitted to advice and assistance or ABWOR, and be advised that you may make enquiries with their employer, bank, DWP, HMRC or any other relevant 3rd party as appropriate, to obtain evidence of income and or capital, if the client has not provided this or if you believe further verification is necessary.

 

I agree to my solicitor contacting other people or bodies about my financial circumstances to verify my eligibility for legal assistance. If I do not provide evidence of my income or capital when requested by my solicitor after being admitted to legal assistance, or if my solicitor requires further verification, I understand that my solicitor will contact my employer, my bank, the DWP, HMRC or any other relevant 3rd party as appropriate, to obtain evidence of income and or capital, as appropriate. I authorise these other people or bodies to provide the information that my solicitor needs to verify my eligibility for legal assistance.

 

Signed………………………………………………………………………………

Date……………………………

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2.19 Contributions

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.

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2.20 Telephone grant

You can, if circumstances demand, grant advice and assistance over the telephone, provided you can satisfy yourself the client is eligible and that you do not need our approval for the grant. If you do so, having taken details to assess the client’s eligibility, you must send the form to the client for signature. You must also ensure that you send us an online application within 14 days of beginning to give advice and assistance.

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2.21 Notice to the Board

You must submit your application within 14 days of commencing advice and assistance/ABWOR. If you do not submit the application on time, it may be rejected. We can only accept late applications if we consider there is a special reason to do so.

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2.22 Multiple grants of advice and assistance

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 III paragraph 1.1), you should generally make one single grant of advice and assistance, if necessary seeking an appropriate increase in authorised expenditure. In paragraph 2.16, we list some examples of cases where it would not be appropriate to make more than one grant.

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2.23 Examples of cases where it is not appropriate to make more than one grant of advice and assistance

You should give only a single grant of advice and assistance in any of the following situations:

(a) for advice given to a client on a variety of subject matters before criminal complaints have been served

(b) where criminal complaints have been served, if the work is of a similar nature for each

(c) in criminal cases where a client has a number of fines outstanding and seeks advice in connection with appearances at means enquiry courts

(d) where a client has a number of failure to appear cases, particularly when the circumstances surrounding these failures are similar this would also apply where the failures to appear were on different days

(e) where advice is given in connection with a number of breach proceedings, probation, community service orders, drug treatment and testing orders etc.

We will not pay for advice and assistance purportedly “granted” in breach of regulation 8(2)(b). Where our guidance says you should make a single grant of advice and assistance, we will only pay for a single grant. If you send us inappropriate multiple applications, this is a matter of non-compliance in terms of section 4.4.5 of the Code of Practice in relation to criminal legal assistance. If you are unsure about whether to make one or more grant of advice and assistance, seek advice from our Head of Criminal Legal Assistance

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2.24 Basic limit of expenditure

Section 10 of the Act, as amended, provides two distinct initial limits of expenditure for criminal advice and assistance:

  • £35, for general advice, pre-complaint or where the client is accepting a direct measure
  • £90, for standard advice in connection with a complaint, or relating to a direct measure where the client “opts in” to further court procedure.

Separate limits apply to grants of ABWOR.

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2.25 Exceeding the initial limit

 

2.26 Applying for authority to exceed the limit

Where you believe that the cost of the work is likely to exceed the initial £35 or £90 limit, you must apply to us for authority to exceed the limit, by making an online increase application.

In dealing with a request for an increase, we consider each case on its own merits. We do not have ceilings, beyond which we will not go, for particular categories of case. However, do not always expect to get an increase to the level you ask for, unless this is clearly supported by the information provided.

When asking for increases in authorised expenditure, give us more rather than less information to enable us to reach an informed decision. 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, for example, outlays for reports
  • details of the existing limit – that is, either the £35 or £90 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 application 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.

Where we grant an application for an increase, you must use the increase for the purpose for which you sought it. You cannot use an outstanding balance for another purpose – for example, getting counsel’s opinion or a prison visit. If you do this, we may not pay this part of your account.

You can ask for more than one increase in a case and there is no upper limit on the expenditure which we can authorise.

Part III chapter 6 gives more details about applying for increases in authorised expenditure for different types of case.

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2.27 Urgent requests

We generally take decisions on increase applications on the day we receive them, unless they are received towards the end of the working day. If the matter is extremely urgent, you can ask for an increase by telephoning our Criminal Applications Department.

Outwith normal office hours calls may be made to 0771 1424 344. Where we grant an increase by telephone, you should send us an online increase application within seven days or whatever other period we may, in the circumstances, consider reasonable.

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2.28 Reconsideration of requests for increases

If we refuse a request for an increase, you can ask for a reconsideration of the decision by selecting the online ‘Reconsideration’ option when we notify you of the refusal. You should provide fresh information and/or address our reasons for not granting (or only partially granting) the increase. 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.

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2.29 Supporting documentation for requests for increases

You must give us all available details in support of an application for an increase.

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2.30 Increases in authorised expenditure cannot be made retrospectively

Increases are not retrospective in their effect. If you do work that exceeds the limit in force before an increase is granted, we will abate charges in excess of the existing limit for that work from any account you later send us.

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 decided that the Board’s prior approval was required.

We will, therefore, only pay for work that is reasonable and necessary, having due regard to economy, where you have our prior authorisation to undertake that specific work.

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2.31 Advice to children

When the applicant is a child (defined in regulation 2(1) as a person under the age of 16 years), 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 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 you are consulted on a criminal matter relating to a child, you must form a view as to the child's general understanding of what it means to instruct a solicitor about any criminal matter.

  • You may consider that an individual child under 12 has such a general understanding, and feel able to accept instructions 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 guardian or other responsible person for instructions.

If you notify us of an advice and assistance grant bearing to have been made to 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 grant in the name of the child.

If you send us an application bearing to have been made and signed by a child aged under 12, you should confirm in writing that you are satisfied that they have a general understanding of what it means to instruct a solicitor. You should address any such correspondence to the Head of Criminal Legal Services. We may query this where the circumstances suggest this is appropriate – for example, if the child is extremely young. Where we are satisfied with the explanation, we will register the grant in the name of the child.

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2.32 Change of nominated solicitor

2.33 Criteria for allowing a change of solicitor in advice and assistance cases (not ABWOR)

There is no provision in the advice and assistance regulations for transferring grants of advice and assistance (although there is for some ABWOR cases – see Part III paragraph 3.22). 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 perhaps 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:

  • died, retired or otherwise left private practice;
  • moved to another firm with agreement that outstanding cases are to remain with the original firm.

The criteria are that:

  • the existing solicitor is unable to complete the course of advice and assistance;
  • another solicitor in the same firm is to complete the advice and assistance;
  • all parties (the original solicitor, the new solicitor and the client) agree to the arrangement;
  • one account will be sent in at the conclusion of the advice and assistance under the new solicitor’s practitioner code and paid under the mandate relating to the new solicitor.

The exception to the rule 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:

  • all parties – the original solicitor, the new solicitor and the client agree to the arrangement;
  • one account will be sent in at the conclusion of the advice and assistance under the sole practitioner’s code and paid under the mandate relating to the sole practitioner;
  • confirmation that the existing solicitor was acting in a locum capacity only in the absence of the sole practitioner.

If, after having considered our guidance on this matter, you are unsure about making a transfer of advice and assistance, you should contact us to discuss the position.

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2.34 Procedure for changing solicitor

To transfer a grant of advice and assistance, you should:

  • write to our Criminal Advice and Assistance Applications Department, explaining the circumstances in which a change of nominated solicitor is necessary
  • send a single letter, signed (as an individual, not on behalf of the firm) by the solicitor who will take over the cases with
  • a list of all affected applicants and their reference numbers
  • the solicitor's code number and branch code
  • include a statement by the existing solicitor showing their consent – if this is not possible, the reasons for this must be clearly stated
  • produce, where the nominated solicitor has died, consent from the executor for a second solicitor to act – if the executor will not grant consent then a second application must be made
  • get signed letters from each client asking us to allow another solicitor to give advice and assistance on the same subject matter, in the following form: "I ask the Scottish Legal Aid Board to allow me to continue to obtain advice and assistance from [insert name of new solicitor] under the following reference numbers [insert reference numbers of all grants of advice and assistance where substitution is needed]."
  • enclose all relevant advice and assistance account synopsis forms (form AA/ACC/1) for amendment.

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 make a fresh application for advice and assistance. (Regulation 13.)

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2.35 Second solicitor giving advice and assistance on the same matter

A client cannot be given advice and assistance on the same matter by more than one solicitor without our prior authority.

If a client comes to you seeking advice and assistance on a matter for which they have already received advice and assistance from you or another solicitor, you must apply to us in the online advice and assistance application for prior authority to give that advice and assistance. (As mentioned in paragraph 2.26, a different procedure applies to ABWOR.)

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.

You should, therefore, always check before admitting a client to advice and assistance that they have not received advice from another solicitor on the same matter.

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2.36 Procedure for withdrawing from giving advice and assistance

If you wish to stop giving advice and assistance to a client on a particular matter you must:

  • give us notice of your withdrawal and your reasons for withdrawing; and
  • explain to your client that, under regulation 13, they must get our permission before receiving advice and assistance on the same subject matter from you or another solicitor.

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2.37 Can advice and assistance be given at the same time as criminal legal aid

Section 7(2) provides that: 

This part of this Act does not apply to advice and assistance provided to a person in connection with proceedings before a court or tribunal at a time when he is receiving legal aid in connection with those proceedings.

Advice and assistance cannot be given in parallel with a grant of related criminal legal aid. The “advice and assistance” is subsumed within the grant of legal aid. You cannot make a grant of advice and assistance, nor charge separately for the work.

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2.38 Grant of advice and assistance subsumed in subsequent grant of ABWOR or criminal legal aid

If you grant advice and assistance, and the case then moves on to ABWOR or summary criminal legal aid, the grant of advice and assistance is subsumed into that subsequent grant.

Where advice and assistance is subsumed within a grant of ABWOR or criminal legal aid, you are not entitled to any separate fees and outlays in connection with the provision of advice and assistance. The only exceptions to this are

  • the cost of an “exceptional police station visit” lasting more than two hours;
  • an appeal under section 174(1) of the 1995 Act; and
  • where advice is provided to a suspect being questioned at a police station.

From 31 October 2011 subsumption was removed for all advice and assistance provided to suspects receiving advice in connection with a police interview. In these circumstances a separate account can be submitted for a grant of advice and assistance for this purpose which proceed to ABWOR or summary criminal legal aid irrespective of the length of time or the time of day involved. This only applies to advice given to a suspect in connection with a police interview. In all other situations, including advice given at police stations after the client has been charged, advice and assistance work will continue to be subsumed into any subsequent grants of ABWOR or summary criminal legal aid, unless the attendance lasts more than two hours and meets the criteria for an exceptional police station visit.

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2.39 Exceptional police custody visit

Payment for advice and assistance will not be subsumed into a subsequent grant of ABWOR or criminal legal aid where there is an “exceptional police custody” visit. An exceptional police custody visits is

  • where the travel to and time spent including waiting and attendance at the station exceeds two hours and
  • it can be shown that there is a need for the work to be done by the nominated solicitor as opposed to a correspondent local to the station.

We do not grant approval for an “exceptional police custody” visit as such in advance; we may allow any work charged in connection with a police station visit in a case which does not proceed to ABWOR or legal aid. You may still need to apply for an increase in authorised expenditure under advice and assistance to cover the visit in the first place. You can do this by phoning us during office hours or on the advice and assistance helpline (07711 424344) in the evening or at weekends. As before, you need to clearly demonstrate to us that neither a local agent nor the duty solicitor was available to advise a client in police custody in relation to the matter.

All advice and assistance, including work undertaken in connection with a police custody visit, is subsumed into any subsequent grant of ABWOR or summary criminal legal aid. However, where the custody visit exceeds two hours, this work may not be subsumed. These two hours include any reasonable and proportionate travelling time. As a guide, we feel that, in normal circumstances, most of the time spent should relate to the attendance with the client. The more extensive the travel, the more we will look at the extent to which the travel element was reasonable and proportionate in the whole circumstances of the case. However, where the time involved with the client at the police station is more than this, we may give authority for this.

We do not have the discretion to allow for separate payment in any other circumstances where the client is being held in custody – for example, in prison.

If we give our authority in these circumstances, we will pay for the visit on a time and line basis.

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2.40 Outlays for third parties incurred under advice and assistance

We cannot pay your outlays for mileage, cost of travel etc. However, the provisions only relate to payment of the solicitor and not to third parties. You are entitled to claim, under the grant of ABWOR or legal aid, for costs such as outlays paid to a doctor for a report or to an interpreter in connection with the case.

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2.41 Private charging after a grant of advice and assistance

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:

  • they must consent to becoming a privately paying client
  • advice and assistance must have ended
  • work done under advice and assistance can only be charged at advice and assistance rates within the limit of authorised expenditure
  • you must tell the client the arrangements for payment. You cannot give your client advice privately while the grant of advice and assistance is continuing.

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