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For solicitors
Legal aid guidance
All guidance
Civil Guidance
Advice and Assistance
Availability of advice and assistance
Definition of advice and assistance
Matters covered by civil advice and assistance
Granting standard advice and assistance
Matters covered by a diagnostic interview
Choosing the correct A&A category code: Civil or Children’s
Diagnostic advice and assistance matter categories
Policy and procedure where providing a diagnostic interviews only or multiple interviews
Moving from a diagnostic interview to standard advice and assistance: when and how to do this
Approved subject matters for standard advice and assistance: deciding whether a matter is ‘distinct’
Civil advice and “representation”: steps which can and cannot be taken before a court or tribunal
Relationship with civil legal aid applications
Who may provide civil advice and assistance?
Who can receive advice and assistance?
Commencement of advice and assistance: the relevant date
The role of unqualified persons in the provision of advice and assistance
Questions to ask your client in determining whether to grant advice and assistance
Client information and satisfying yourself on eligibility before granting
List of your responsibilities
TOOL: apply for/oppose an order under the Adults with Incapacity (Scotland) Act 2000
Advice and Assistance application procedures
Completing the advice and assistance application form
Advice and assistance and the assessment of financial eligibility
Financial eligibility of children for advice and assistance (non-criminal matters)
Advice and assistance for reciprocal enforcement of maintenance orders: special eligibility arrangements
Financial eligibility for advice and assistance: evidence you must supply
Advice and assistance applications: the applicant’s declaration
Telephone grants of advice and assistance
Granting advice and assistance: timescales for notifying us
Identifying case types where A&A is appropriate: distinct and reasonably ancillary matters
Advice and assistance and the basic limits of expenditure: which level applies?
Authority to exceed the initial expenditure limit for advice and assistance: template increases
Advice and assistance: non-templated increases
Providing advice and assistance to children
Advice and assistance and changes of nominated solicitor
Second solicitor giving advice and assistance on the same matter: prior authority required
Procedure for withdrawing from giving advice and assistance
Private client charging after a grant of advice and assistance has ended: what you must do
Rule on the simultaneous provision of A&A and civil legal aid
Advice and Assistance financial verification
Financial verification for advice and assistance: introduction
Financial verification for advice and assistance: general principles
Advice and assistance eligibility and financial verification: The client’s responsibilities
Advice and assistance and financial eligibility: assessment of capital
Advice and assistance and financial eligibility: assessment of income
Advice and assistance and financial eligibility: cases where no documentary evidence of eligibility is immediately available
Advice and assistance and financial verification in prisoners’ cases: aggregation of partner’s resources
Advice and assistance and financial verification: preferred age of documentary evidence
ABWOR in civil proceedings
The scope and availability of ABWOR in civil proceedings
Proceedings requiring our prior approval before granting ABWOR
Financial eligibility tests for ABWOR: case type exemptions
Your responsibility to decide on your client’s eligibility for ABWOR
Requirement for our prior approval for certain ABWOR cases: tests applied
Civil ABWOR: the limit of authorised expenditure
Exemptions to rules on property recovered or preserved in Upper Tribunal proceedings
Increases in authorised expenditure under advice and assistance and ABWOR employment of third parties
The use of counsel under Advice and Assistance
Advice and assistance increases for expert witnesses who are based at a considerable distance from the court and your client: factors to address
Advice and assistance increases for mediation
Limited availability of advice and assistance for tracing relatives or witnesses: “fishing enquiries”
Increases for different types of case under A&A and ABWOR
TOOL: A&A increases and templates guide
Civil Legal Aid
Availability of Civil legal aid and application procedures
Definition of civil legal aid
Applications by corporate or unincorporated bodies and sole traders
Courts and tribunals in which civil legal aid is available
Proceeding for which civil legal aid is not (or only partially) available: ‘excepted proceedings’
Civil legal aid: statutory tests for applications
Other rights or facilities
Civil legal aid for matters outwith Scotland
What date is legal aid effective from?
The essential components of a civil legal aid application: forms, statutory statements, declaration
Civil legal aid and the role of opponents
Civil legal aid applications: statements and other documents we need
Rejection of civil legal aid applications: consequences of missing information
Civil legal aid applications by someone unable to sign or suffering from a mental disorder
Civil legal aid applications by person resident outwith the UK
Civil legal aid application by or on behalf of children: assessing ‘general understanding’ of instructing a solicitor
Our power to modify or impose conditions on grants of legal aid
Refusal of legal aid applications
Applications for civil legal aid for proceedings where we are a party
Disputing information: what to send us if you are acting on behalf of your client who is the opponent
Financial assessment
Financial eligibility for civil legal aid: general conditions and limits
Choosing the right financial information form for the client
Civil legal aid assessment period and its consequences: ‘period of computation’
Taking partners’ financial resources into account: civil legal aid
Civil legal aid: how we calculate income and what’s included
Civil legal aid: assessment of capital resources and relevant disregards/allowances
Financial assessment where applicant has deprived themselves of resources: no disregards given
Calculating disposable capital and disregards: are the resources the subject matter of dispute?
Financial assessment for special categories of applicant
Appellate proceedings: is a fresh financial assessment and additional contribution necessary?
Adults With Incapacity (Scotland) Act 2000: modified financial assessment process
Will my client be liable to pay a contribution?
Assessing probable cause and reasonableness
Overview of reasonableness factors
Timing of the application and the status of the dispute
Prospects of success
Cost and benefit analysis
Strategic impact or wider public interest of the case
Merits of different types of case
TOOL: find the merits guidance for your case
Cohabitee cases
Gender Recognition cases
Cases involving disputes over children
Matrimonial property disputes
Divorce – non-financial provision cases
Divorce – financial provision cases
Applications for legal aid by curators ad litem for children
Interdicts, power of arrest and non-harassment orders
Reparation cases
Petition for Judicial Review
Legal aid for judicial review of our decisions
Actions of payment
Actions of reduction
Caution
Safeguarders – Adults with Incapacity
Fatal Accident Inquiries
Appellate proceedings
Applications by children
Defamation
Mortgage rights proceedings – Home Owner and Debtor Protection (Scotland) Act 2010
Actions in relation to private sector tenancies (including eviction proceedings in the First-tier Tribunal for Scotland (Housing and Property Chamber))
Proceeds of Crime cases
Adults with Incapacity (AWI)
Modified application procedures
Civil legal aid for child abduction/custody cases: simplified application arrangements for Hague Convention and European Convention on the custody of children cases
Civil legal aid cases under the European judgements convention: modified application procedure
Civil legal aid cases under the Maintenance Orders: Reciprocal Enforcement
Legal aid and cross-border disputes within the European Union: modified application procedure
Civil legal aid for maintenance obligation cases under Council Regulations (EC) No. 4/2009: circumstances where no financial assessment required
Special urgency
Cover for work done before a decision on the legal aid application: the nature and types of special urgency
Special urgency: satisfying yourself that a client is financially eligible
List of circumstances in which you may undertake urgent work without prior approval
Arrangements for collection of your client’s contributions in special urgency: the client mandate
Assessment of special urgency applications: tests applied by us
Special urgency guidance: family cases
Rejected or continued applications for civil legal aid: limited circumstance in which special urgency is available
The importance of providing reasons for special urgency in the body of your application
Special urgency, expenses, and property recovered or preserved: circumstances where we may not be able to pay you
Status of your client under special urgency: contributions and requirement to provide financial information
Special urgency and extension or amendments to existing legal aid
Special urgency and sanction applications: usual sanction procedure applies
Special urgency and undertaking necessary collateral work: timing issues
Special urgency work’s status: issues your client to be aware where it is not a grant of legal aid
Special urgency situations where the client does not comply with our requests for information: potential effects
Special urgency: procedure for exemption from court fees
Cost limits
Cost limitations on grants of civil legal aid: how the limit is calculated and what is covered
The importance of monitoring your case costs: considering sufficient expenditure
Case cost limits: payments from the Fund and judicial expenses cases
Applying for funding beyond the standard cost limit: factors to be addressed
Seeking a review of the case cost limit applied: procedure and information to provide
Applying for an increase beyond the standard cost limit: procedure and information to provide
Increases in long running cases or with multiple legally-aided parties: our monitoring role
Situations in which retrospective authority for a case cost increase may be granted
TOOL: standard cost limit of your case
After a grant, and prior approval needed
Key points about approval
Applying for approval before, during and after a grant of legal aid
Employment of counsel
Instructing a medical or health professional
After a grant: extensions or amendments to grants of civil legal aid
Employment of expert witnesses
Practical guidance to give to witnesses
Practical guidance to give to shorthand writers
Work of an unusual nature or likely to involve unusually large expenditure
After a grant: prior approval and the execution of diligence
Stage reporting
Changes of nominated solicitor
TOOL: funding for child welfare report
TOOL: sanction required if not acting as an expert?
TOOL: find a template sanction
TOOL: common types of work involving unusually large expenditure or unusual work
Changes of circumstances and withdrawal of legal aid
Duty to report change of circumstances: applicants, solicitors, and opponents
Duty to report abuse of civil legal aid
Our power to amend financial assessment: potential scenarios
Suspension of civil legal aid: relevant scenarios and impact
Termination of civil legal aid on change of circumstances
Regulation 31: termination of legal aid where conduct of assisted person incompatible with continued grant
Termination of legal aid in cases of false or incomplete information
High cost and complex cases
Civil cases subject to special arrangements: criteria for identifying high cost and/or complex cases
Dedicated contact from us in high cost/complex cases
Our role in identifying and avoiding duplication of work across high cost/complex civil cases
Advice and Assistance Accounts
Introduction to civil A&A and ABWOR fees
Introduction to civil A&A accounts legislation
Basis on which we assess requests for payment of AA fees and outlays: the standard of taxation
Tables of fees available for civil advice and assistance
Cases where you are not due payment from the Fund: restrictions on what you can charge your client
Civil legal aid already in place
What information should you supply with your civil A&A account?
Payment under civil advice and assistance
Assessment of advice and assistance accounts: providing proportionate advice and potential abatements
Payment under advice and assistance
“First port of call” provisions: payment sources to look to before making a claim on the Fund
How to calculate and seek payment for A&A: the role of expenses/property recovered or preserved
Payment for A&A where claiming judicial expenses: no claims on Fund or your client
Diagnostic interview
Payment for diagnostic work where standard A&A later becomes available
Submission of diagnostic advice and assistance accounts: timebar after three months
Diagnostic advice and assistance: definition and expenditure limit
Who may give advice and assistance and ABWOR
Understanding what is properly chargeable in accounts: who can provide advice and assistance?
Advice and assistance accounts: delegation of work to unqualified person
AA/ABWOR accounts: what counts as ‘representation’
Advice and assistance accounts: can I undertake chargeable work if my practicing certificate has been restricted?
Can I delegate advice and assistance to an out of house professional?
Employment of and payment for counsel under A&A: prior authority required
Preparation and submission of an account
Preparing an A&A account: no charge payable
Submission of A&A accounts including diagnostics: date by which we must receive your account
Submission of accounts when both A&A and civil legal aid have been provided
When should an ABWOR account be submitted?
Sources of payment for A&A accounts: the hierarchy of payments and Fund as last port of call
Circumstances in which the higher limit for expenditure on A&A may be available
A&A accounts and increases in authorised expenditure
Information you should retain to vouch for your accounts
The account - fees
No work chargeable before advice and assistance is granted
Providing sufficient information for the assessment of account entries
Fees for the initial meeting and taking instructions from the client
Time chargeable for subsequent meetings with client
Fees payable for letters under advice and assistance
Circumstances in which you may charge for perusing correspondence under A&A
Rates allowable and information you should provide with the account entry for telephone calls
Fees payable for the taking of a precognitions in A&A cases
The rate payable for perusal of documents in A&A accounts
No fee payable for letters to us accompanying increase applications
The account - outlays
A&A accounts: test applied for whether outlays charged are allowable
A&A accounts and increases: authorised level of expenditure not automatically payable
A&A accounts and counsel’s fees: demonstrating work was reasonable, and procedure for payment
A&A accounts and mileage: the flat rate payable
Reimbursement of outlays: circumstances in which reimbursement is available
A&A outlays and payment for expert reports: requirement of prior approval
Outlays payable for experts located at a distance from court: information you should provide
Issues arising with different types of A&A
Requirement for increase to be granted and implications for property recovered or preserved for conveyancing work
Increases and cost-sharing between parties in family mediation
No fees payable for precognitions for Criminal Injuries Compensation Agency work
ABWOR
What is ABWOR and who may provide it?
Proceedings you need our prior approval to provide ABWOR in
ABWOR accounts and the employment of counsel: requirement of prior approval and charges for unauthorised advocacy
When are affidavit charges payable in ABWOR cases?
Block fees payable and charges subsumed under ABWOR in sequestration proceedings
ABWOR payments for hearings before tribunals
Factors to consider and payment implications when instructing local agents for your ABWOR accounts
Specific information and justification required for our assessment of fees for preparation work
Travel
A&A general rules for travel-related charges: client should travel to you, and methods of travel
A&A charges for consecutive days’ travel: is it cost effective?
When does travel become chargeable under A&A? Information you must be satisfied on
A&A travel costs: steps you should take to ensure costs will meet the statutory tests
Payment for travel outwith normal hours: what location will we pay you from?
Advice and Assistance accounts and travel: flat mileage rate payable and parking charges
Payment for travel and the appropriate apportionment of cost between clients: general policy
Travel costs for one destination: attending on multiple clients and when to round up time spent
Travel costs where multiple destinations: how to appropriately allocate costs where equal apportionment is not possible
Civil legal aid accounts
Introduction to civil reform fees
What types of cases are subject to civil reform fees?
Submission of account of expenses: when must your final account be submitted by?
Detailed fees: Court of Session proceedings, Children’s Proceedings, work listed in Schedule 7 and simple procedure cases chargeable under schedule 2A
Civil legal aid accounts: Court of Session cases
Civil legal aid accounts: Sheriff Appeal Court
Civil legal aid accounts: list of sheriff court cases or work items chargeable on a detailed basis
Payment for special urgency work in cases which do not proceed to civil legal aid
Civil legal aid accounts: Simple procedure cases
Block fees: sheriff court proceedings (no action raised or undefended)
Sheriff court block fees where no action raised: payment in formal and informal settlement scenarios
Civil legal aid: fees payable for undefended actions which become defended or vice-versa
Civil legal aid fees: fees payable for undefended actions in the sheriff court except those actions of divorce or separation and aliment
Civil legal aid fees: fees payable for undefended actions in the sheriff court for actions of divorce or separation and aliment
Block fees: sheriff court proceedings (defended)
Sheriff court cases chargeable on a block fee basis: defended action
Civil legal aid block fee accounts: instruction fees
Civil legal aid accounts: progress fees for work done before 10 February 2007
Civil legal aid accounts: Continued Options Hearing
Civil legal aid accounts: fees chargeable for motions and minutes
Civil legal aid accounts: list of miscellaneous fees
Civil legal aid accounts: summary of settlement provisions and when chargeable
Civil legal aid accounts: fees for preparation
Civil legal aid accounts: conduct & waiting
Civil legal aid accounts: activities covered by the conduct fee
Civil legal aid accounts: travel time
Additional fees and provision for exceptional cases in schedule 2A and schedule 6 cases
Civil legal aid accounts: availability of additional fees (‘percentage uplift’)
Civil legal aid accounts: factors we consider when assessing additional fee requests in block fee schedule 6 cases
Civil legal aid accounts: application for additional fee in Court of Session, Sheriff Appeal Court cases and summary cause proceedings
Civil legal aid accounts: Sheriff Appeal Court and Sheriff court – Procedure for applying for an additional Schedule 6 inclusive fee
Civil legal aid accounts: applying for an exceptional case application in accounts chargeable under schedule 2A or schedule 6
Interim payment procedure for fees and/or outlays
Civil legal aid accounts: availability of payments to account for fees
Civil legal aid accounts: availability of payments to account for outlays
Ruling on appearance of counsel without an agent
Dean of Faculty ruling on appearance of counsel without an agent: relaxation of previous rules and implications
Clawback and expenses
A&A - clawback and regulation 16(3)
Introduction to advice and assistance: property recovered and preserved provisions
Payment of A&A fees and outlays: the hierarchy of payments and where you should look to for payment
Our definition of property recovered or preserved (advice and assistance)
Property recovered or preserved where your client received both A&A and civil legal aid
Hardship applications: grave hardship or distress to client or undue difficulty or delay recovering the money – Reg. 16(3)
Client hardship applications: Regulation 16(3)(a)
Solicitor hardship applications: difficulty or delay in recovering from the applicant
Clawback and transfers of agency
Review of our refusal under regulation 16(3)(a) or (b)
Clawback: our right to recover sums paid out of the Fund from the applicant
Property recovered or preserved in civil legal aid
‘Clawback’ in civil legal aid: our right to recoupment from property recovered or preserved
Legal background and rationale for property recovered or preserved provisions in civil legal aid
Property recovered or preserved: calculating the net liability to the Fund
Defining ‘recovery and preservation of property’
Points in proceedings which may trigger a recovery or preservation of property
Recovery or preservation of property in matrimonial proceedings
Exemptions from clawback in civil legal aid
Concluding a case: information you should provide to help us assess whether property has been recovered or preserved
Clawback in civil legal aid: payment and enforcement of the net liability
Expenses
Expenses in favour of an assisted person
Expenses against the assisted person
Expenses of unassisted party out of the Legal Aid Fund
Awards of judicial expenses
Judicial expenses and private charging for work done before legal aid was granted
Contempt of court
Who can provide legal aid for contempt of court? Legal aid registration requirements
General scope of legal aid in contempt of court proceedings
Availability of legal aid for contempt of court proceedings
Contempt proceedings at first instance: power of the court to assign solicitor or counsel
Legal aid in contempt proceedings at the first instance: applying to the court and eligibility criteria
Legal aid in contempt appeals: applications to us and tests applied
Contempt of court: refusals of legal aid
Sanction in contempt of court cases
Termination of legal aid in contempt cases: application of Regulation 8 and implications
Criminal Guidance
Carrying out criminal legal assistance
Availability of advice and assistance
Definition of criminal advice and assistance
Matters covered by criminal advice and assistance
The different types of criminal advice and assistance
Who may provide criminal advice and assistance?
Who may receive criminal advice and assistance?
Cases where our approval is required to grant criminal A&A
Commencement of advice and assistance: effective date
The role of unqualified persons in the provision of criminal A&A
Questions you should ask applicants in determining whether to grant A&A
Client information and requirement to satisfy yourself on eligibility before granting
Criminal A&A: list of the solicitor’s responsibilities
Advice and assistance application procedures
Completing the criminal advice and assistance application form
Verification of financial eligibility and contributions
Criminal advice and assistance: the client’s responsibilities
Financial verification of capital – to be checked even in passport benefit cases
Financial verification of income
Verification in cases where no documentary evidence of eligibility is immediately available
Verification in prisoners’ cases
The importance of providing up-to-date documentary evidence
Client declaration: where it is not practicable to see verification of income or capital at the outset
Criminal A&A and contributions: your role in collection
Telephone grant of advice and assistance: requirements
Commencing A&A: providing notice to us and late applications
Multiple grants of advice and assistance
Criminal advice and assistance: what are the basic limits of expenditure?
Exceeding the initial limits of expenditure
Applications on behalf of children
Changes of nominated solicitor
Second solicitor giving A&A on the same matter: prior authority required
Procedure for withdrawing from giving advice and assistance
Relationship of AA to ABWOR and criminal legal aid
Outlays for third parties incurred under advice and assistance
Private charging after a grant of advice and assistance
ABWOR in summary criminal proceedings
General scope of ABWOR in criminal proceedings
Eligibility criteria for ABWOR
Responsibility of solicitor in criminal ABWOR
ABWOR in summary cases where accused not in custody : interests of justice
The interests of justice test
ABWOR in summary cases – accused in custody – “appointed solicitor”
Definition of “appointed solicitor”
Examples of situations where the appointed solicitor cannot appear on behalf of the accused
Applying for ABWOR – summary cases
Initial limits of authorised expenditure under regulations 6 and 6A
Withdrawal from acting for a client under ABWOR
Change of solicitor under summary criminal ABWOR
Post-certificate ABWOR arrangements for Glasgow Alcohol Court and other problem Solving Courts
ABWOR in other criminal proceedings
General scope of ABWOR in non-summary criminal proceedings
Eligibility criteria for ABWOR
Responsibility of solicitor
Cases for which ABWOR is available other than those under summary procedure
Cases where our prior authority is needed
Initial limits of authorised expenditure and increase applications
Youth court and domestic abuse court pilots
Availability of ABWOR in a drug court
Double jeopardy cases
Recovery of sensitive documents
ABWOR in parole board proceedings
Provision of A&A and ABWOR in Parole Board cases: introduction
ABWOR in Parole Board cases: relevant legal aid regulations and Parole Board rules
Availability of ABWOR for Parole Board cases: specific categories of prisoner
Parole Board procedure: governing rules and process
Parole Board cases: scope of ABWOR available and initial limit of expenditure
Parole Board cases: eligibility criteria for ABWOR
Parole Board cases: increases in authorised expenditure
Parole Board interviews: outwith scope of ABWOR
Increases for advice and assistance and ABWOR
Requirements in applications for increases
How to apply for an increase: process and information required
Increases for the Employment of Counsel and Expert Witnesses and other third parties
Procedure under the Criminal Procedure (Scotland) Act 1995
Petition for the removal of a disqualification under section 42 of the Road Traffic Offenders Act 1988
Increase requests for Scottish Criminal Cases Review Commission cases
Template increases for deferred sentences, DTTOs and post-conviction hearings in ABWOR
Criminal legal aid - general availability
Scope and nature of criminal legal aid
Who may provide criminal legal aid
Distinct proceedings, bail, preliminary pleas, reduction from solemn to summary, desertion of proceedings, remits to and from the High Court.
Separate application for legal aid
When to make an application for criminal legal aid, automatic legal aid, solemn, summary and appeals cases
Criminal legal aid for referrals to the European Court, Devolution issues and the Supreme Court
Referrals by Designated Life Prisoners excluded from criminal legal aid but covered by ABWOR
Automatic availability of criminal legal aid
Availability of automatic criminal legal aid
Automatic legal aid for an identification parade
Automatic legal aid for solemn proceedings
Automatic legal aid for summary proceedings, duty solicitors and appointed solicitors
Automatic legal aid for cases involving mental health issues, pleas in bar of trails, mental health proofs, examination of facts, section 62 or 63 appeals
Automatic legal aid for new prosecution for the same or similar offence
Automatic legal aid for sexual offences and certain cases involving child witnesses under the age of 12, other cases involving vulnerable witnesses and certain cases under the Domestic Abuse (Scotland) Act 2018
Intimation form for automatic legal aid in certain situations
Duty solicitor arrangements
Our obligation to make arrangements for Court duty solicitors
Purposes for which court duty solicitors must be available in solemn and summary procedures
Continuity of representation outwith solicitor’s period of duty
Circumstances in summary custody cases when only the court duty solicitor may give legal aid
Criminal court duty plans, eligibility criteria and consultation with local faculties
Delegating or exchanging court duty work: administrative provisions relating to duty and alternate duty solicitors
Responsibilities and obligations of the court duty solicitor and the relationship with the nominated solicitor’s role
Duty solicitor payment arrangements, follow up fees, preliminary pleas, youth and domestic courts, failures to appear, appointed solicitors, reduced summary fees, prevaricating witnesses
Parallel advice and assistance with court duty claims
Court applications: criminal legal aid
Criminal legal aid – applications to the court
How to complete a court application form
Summary - applications to SLAB
Availability of criminal legal aid in summary proceedings
Applying for legal aid in summary proceedings
Statutory criteria for grant of criminal legal aid in summary proceedings
Time limit for applications in summary proceedings
Statutory factors to be taken into consideration when applying the interests of justice test
Evaluation of factors and contra-indicators in interest of justice test
Special urgency in summary criminal proceedings
Review of application refusal in summary proceedings
Exceptional case status application in summary proceedings
Factors we take into account when assessing exceptional case status
Payment-related information in summary criminal proceedings
Glasgow Alcohol Court and other problem Solving Courts
Summary - financial eligibility
Undue hardship test in summary criminal legal aid applications
Assessing disposable income
Assessment of Disposable Capital
Applicants receiving multiple benefits
Requirement to provide financial verification and bank statements for employed clients
Solemn - applications to SLAB
Availability of legal aid in solemn criminal proceedings
Court grants of automatic legal aid in solemn proceedings
Legal Aid Online applications for solemn legal aid
Limited availability if your client has other rights and facilities
Assessment of undue hardship in solemn proceedings
Special urgency and solemn legal aid
Procedure for review of our decision to refuse legal aid
Solemn - financial eligibility
Undue hardship test in solemn criminal applications
Assessing disposable income
Assessing disposable capital
Change of circumstances and standard conditions
Applicants in receipt of benefits
Requirement to provide financial verification and bank statements if your client is employed
Appeals - applications to SLAB
General availability of criminal legal aid for appeals and status as distinct proceedings
Choosing the right legal aid declaration form for criminal appeals
No legal aid at first instance and applying for an appeal
Availability of legal aid in appeals for clients with other rights or facilities to assist with legal costs
Financial tests applied for legal aid application in criminal appeals
Timing issues and when to apply for legal aid in criminal appeals
Test applied to legal aid applications for appeals under the Criminal Procedure (Scotland) Act 1995
Criminal legal aid and late appeals
Availability of legal aid and tests you should address in applications for legal aid for an appeal to the Supreme Court
Criminal legal aid and Crown appeals: is a separate legal aid application required?
Criminal legal aid for appeals in Scottish Criminal Cases Review Commission cases
Power of the High Court to determine interests of justice test in appeal applications
Supporting documentation you should provide for legal aid applications in criminal appeals
Availability of special urgency for criminal appeals
Review of our refusal to grant legal aid for a criminal appeal
Post grant work and work needing prior approval
When do I need to apply for sanction?
Sanction sought at petition stage
Employment of counsel in criminal applications
Taking defence statements in High Court cases
Employment of expert witnesses
Work of an unusual nature or likely to involve unusually large expenditure
Review of refusal of sanction
High cost and complex criminal cases
Criminal cases subject to special arrangements due to them being high cost / complex
How we assist you in high cost/complex cases
Situations when you may wish to consult with us prior to applying
Our role in identifying and avoiding duplication of work across high cost/complex cases
Early meetings between us in high cost cases
Good practice in complex criminal cases
Change of solicitor
Nominated solicitor ceasing to act for assisted person
Client dispensing with your services
Your client wants another solicitor to act
Timescale of transfer decisions
Termination of criminal legal aid
Termination of criminal legal aid by the court
Termination of criminal legal aid by us
Proceeds of crime
Criminal and civil legal aid in proceeds of crime cases
Proceeds of crime work where legal aid granted at first instance
Proceeds of crime work where no legal aid in the first instance
Contempt of Court
Who can provide legal aid for contempt of court? Legal aid registration requirements
General scope of legal aid in contempt of court proceedings
Availability of legal aid for contempt of court proceedings
Contempt proceedings at first instance: power of the court to assign solicitor or counsel
Legal aid in contempt proceedings at the first instance: applying to the court and eligibility criteria
Legal aid in contempt appeals: applications to us and tests applied
Contempt of court: refusals of legal aid
Sanction in contempt of court cases
Termination of legal aid in contempt cases: application of Regulation 8 and implications
Criminal fixed payment accounts
Introduction to summary criminal fixed payments
What are fixed payments?
Proceedings to which fixed payments apply
Proceedings to which fixed payments do not apply
The fixed payments schedules
Bar on mixing fixed payments and detailed fees
Breach of bail etc. proceedings
Proceedings covered by fixed payments (the “single matter”)
Acting for more than one accused person in the proceedings
Proceedings arising out of the same incident
Single payment in a summary criminal case
Proceedings to which fixed payments do not apply
Exceptions to lodging a fixed payments account
Excluded proceedings
Exceptional cases
Fixed payments allowable in a case
The structure of fixed payments
First and second deferred sentence
Schedule 1 fee (the legal aid core fixed payment)
Schedule 1A fee (the legal aid case disposal fee in the sheriff court)
Schedule 1B fee (the ABWOR core fixed payment in the JP court)
Schedule 1B fee (the ABWOR case disposal fee in the sheriff court)
Section 174(1) appeal
Post-conviction hearings under ABWOR
The drug court
Travel
Subsumption of fees and outlays under advice and assistance (and ABWOR)
Outlays
Outlays included in the fixed payment fee
No payment can be made to a witness on the Crown list
Outlays not included in fixed payment
General regulations and standard of taxation – outlays
Employment of counsel and expert witnesses
Sanction for unusual work or unusually large expenditure
Certain outlays not chargeable under advice and assistance (and ABWOR)
Accounts and general issues
Submission and completion of the account synopsis form
Conclusion of proceedings
Criminal fees regulations and standard of taxation
Acting for more than one accused person in the proceedings
Payment on transfer of agency
ABWOR issues in fixed payment accounts
Waiting time
Duty solicitor plea – half fee
Appendix 1: Summary of Criminal fixed payment schedules
Summary of Schedule 1 – Part 1
Summary of Schedule 1 – Part 2 Drug Court
Summary of Schedule 1A – Part 1
Summary of Schedule 1A – Part 2 Drug Court
Summary of Schedule 1B – Part 1 (JP Court)
Summary of Schedule 1B – Part 2 Drug Court (JP Court)
Summary of Schedule 1B – Part 1 (Sheriff – Stipendiary Court)
Summary of Schedule 1B – Part 2 Drug Court (Sheriff – Stipendiay Court)
Appendix 2: Proceedings arising out the same incident
Examples of proceedings arising from the same incident
New complaint the same as previous complaint
New complaint: further charge arising from incident
Two separate complaints combined in a third
Examples of proceedings not arising from the same incident
New complaint: further charge from separate incident
Bail offences
Conditions to be met by an appointed solicitor
Children's Guidance
Children's Advice and Assistance
Availability of Advice and Assistance
What is advice and assistance?
Who may provide advice and assistance?
Who can receive advice and assistance?
Does your client have any other rights and facilities?
What does advice and assistance cover?
Questions to ask your client when assessing their eligibility
Summary of your responsibilities in providing advice and assistance
Advice and Assistance Application Procedures
Applying for advice and assistance: choosing the correct category code, and advice and assistance applications on behalf of – or directly by – a child
Assessment of an applicant’s financial eligibility
Advice and Assistance Declaration form
Time limit for intimation of application to us
Multiple grants of advice and assistance
Situations where fresh grants of advice and assistance are required for the same client
The limit of authorised expenditure
Change of nominated solicitor
Second solicitor giving advice and assistance on the same matter
Procedure for withdrawing from giving advice and assistance
Private charging after a grant of advice and assistance
Can advice and assistance be given at the same time as children’s legal aid?
Could someone receiving advice and assistance end up paying money recovered or preserved back to the Legal Aid Fund?
Verification of financial eligibility for children’s advice and assistance and ABWOR
The purpose of verification of financial eligibility
Capital eligibility: must be checked even if your client is receiving a passported benefit
Eligibility on Income
Cases where no documentary evidence of eligibility is immediately available
Verification in prisoners’ cases
What period should documentary evidence cover?
Increases in authorised expenditure
When increases in children’s cases are required: different types of hearings
Appeals against decisions of children’s hearing
Appeals to the Sheriff Appeal Court and/or Court of Session
Increases for employment of counsel
Independent Reports and Assessments for children’s hearings
Independent experts attending and participating at children’s hearings
Increase requests by Curators ad litem
The availability of increases for attending Social Work case conferences, Child in Care Reviews, adoption matching panels and other such meetings
The availability of increases for pre-Hearing visits
Assistance by Way of Representation for children’s proceedings
General scope of ABWOR in proceedings under the 2011 Act
Templated increases in authorised expenditure for certain hearing types where ABWOR has been granted
Availability of ABWOR to a child
Availability of ABWOR to relevant persons and deemed relevant persons in 2011 Act proceedings
Availability of ABWOR to a “126 individual”
Availability of ABWOR to a “non-deemed relevant person”
The effective participation test
When fresh grants or applications for ABWOR are required
When fresh grants of advice and assistance (not ABWOR) are required
Examples of when you should make a fresh grant or application for ABWOR or where an increase request is sufficient for the next hearing
Children's Legal Aid
Legal Aid for Children’s Proceedings
Applications for children’s legal aid for an application to the sheriff for a review of a finding under section 85 of the Children (Scotland) Act 1995 and onward appeals to the SAC and COS
General scope of children’s legal aid
Children’s Hearings (Scotland) Act 2011
Availability of children’s legal aid
Online Declaration/the applicant’s Declaration
Other proceedings for which children’s legal aid is not available
Exclusion Orders – S76 to 80 of the Children (Scotland) Act 1995
Distinct proceedings for legal aid purposes
Sheriff Court Applications for children’s legal aid
General – applications to us
Cases concerning multiple children: multiple applications by Relevant Persons or other adult individuals not required
Application directly by a child for children’s legal aid for children’s court proceedings
Application for children’s legal aid on behalf of a child
Application for children’s legal aid by a safeguarder
Applications for children’s legal aid by a curator ad litem
Statutory criteria for legal aid for sheriff court proceedings where the applicant is a child
Statutory criteria for legal aid for sheriff court proceedings where the applicant is a relevant person or deemed relevant person
Statutory criteria for legal aid for sheriff court appeal proceedings
Statutory criteria for legal aid for sheriff court appeal proceedings where applicant is a section 126 individual
Other rights and facilities
Supporting information you should send with application for children’s legal aid for sheriff court proceedings
Conditions on grants of legal aid
Review of refusal of legal aid or conditions on the grant of legal aid
Financial Assessment
Financial conditions
Period of computation
Resource of partners
How we calculate income
How we assess capital
Undue Hardship
Contributions
Special circumstances
Appeals to the Sheriff Appeal Court and Court of Session
General – applications to us
Multiple applications not required
Application directly by a child
Application made by a representative (other than a solicitor) on behalf of a child
Application by a safeguarder
Application by a curator ad litem for appeals to Sheriff Appeal Court or Court of Session
Statutory criteria for legal aid for appeals to the Sheriff Appeal Court and Court of Session where the applicant is a child
Statutory criteria for legal aid for appeals to the Sheriff Appeal Court and Court of Session where the applicant is a relevant person/deemed relevant person
Statutory criteria for legal aid for appeals to the Sheriff Appeal Court and Court of Session where the applicant is seeking deemed relevant person status or has been undeemed relevant
Statutory criteria for legal aid for appeals to the Sheriff Appeal Court and Court of Session where the applicant is a section 126 individual
Other rights and facilities
Supporting information you should send with the application
Appeals from the Sheriff Appeal Court to the Court of Session
Representations from the reporter (or other party)
Appeals by the children’s reporter
Grants of legal aid subject to conditions
Review of refusal of legal aid or conditions attached to grant of legal aid
No payment can be claimed after successful appeal after refusal of legal aid
Legal aid cover where there is a successful appeal and a remit to the sheriff court for disposal
Special Urgency
Availability of special urgency cover after full legal aid is refused
Sanction applications before a grant of full legal aid is made
Status of your client
Legal aid application must be submitted within 28 days of commencement of urgent work
Extent of a grant of special urgency
Guidance on applying for cover for special urgency
The Declaration (previously known as mandate)
Special Urgency cover for steps in court proceedings before a decision is made on a legal aid application
What happens if your client does not comply with our requests for information?
Procedures after legal aid is granted
What work do I need sanction for?
General guidance on sanction for counsel
Applying for sanction for counsel
Factors that may justify the employment of junior counsel
Sanction for senior counsel acting alone or with junior counsel in children’s court proceedings
Instructing a solicitor advocate instead of an advocate
What work will sanction for counsel cover?
When you need sanction to employ an expert
Applying for sanction to employ an expert
Selecting an appropriate expert
Prior approval required for experts and limitations on their costs
Sanction for unusual expenditure or work likely to involve unusually large expenditure
What information should be provided in support of an application for sanction for unusual expenditure or work likely to involve unusually large expenditure?
Special measures for child witnesses and vulnerable adult witnesses
Taking precognitions in children’s hearings proof proceedings and disclosure of evidence by the Reporter
Viewing a Joint Investigative Interview (JII)
Reconsideration of sanction refusals or part grants
Changes of nominated solicitor and withdrawing from acting
High cost or complex cases
High cost and complex cases
Dedicated staff members
When we may contact SCRA and other parties regarding high cost and complex cases
Case management meetings between us and a party or parties in a high cost/complex case
Safeguarders and curators ad litem
Payment of Safeguarders and Curators Ad Litem in children’s hearings court proceedings
Appointment and payment of safeguarders where the safeguarder is a practicing solicitor
Appointment and payment of curators ad litem who are also practicing solicitors
Advice and Assistance cannot be given by safeguarders and curators ad litem
Changes in circumstances and withdrawal of legal aid
Changes in circumstances and withdrawal of legal aid
Duty to report abuse of legal aid
Our power to amend assessment
Suspension of legal aid
Termination of legal aid on change of circumstances
Termination of children’s legal aid other than on change of circumstances
Termination of legal aid in cases of false or incomplete information
Children's Duty Scheme
Duty Scheme and Recommendation Requests
Duty solicitor provisions of the 2011 Act
Operation of Duty Scheme
PVG Registration Requirement for the Children’s Duty Scheme
The children’s duty scheme and providing automatic legal aid
When your appointment as Duty solicitor ceases
Claims for payment for the provision of Automatic Legal Aid by the Duty solicitor
Recommendation Requests – Rule 50 and 61
Contempt of Court
Who can provide legal aid for contempt of court? Legal aid registration requirements
General scope of legal aid in contempt of court proceedings
Availability of legal aid for contempt of court proceedings
Contempt proceedings at first instance: power of the court to assign solicitor or counsel
Legal aid in contempt proceedings at the first instance: applying to the court and eligibility criteria
Legal aid in contempt appeals: applications to us and tests applied
Contempt of court: refusals of legal aid
Sanction in contempt of court cases
Termination of legal aid in contempt cases: application of Regulation 8 and implications
Children's Accounts
Introduction to Children's Legal Aid Accounts
Introduction to Children’s Legal Aid Accounts: overview and aims of this guidance
Standard of taxation for children’s legal aid including automatic legal aid but excluding ABWOR
The Table of Fees
Information needed to enable account to be assessed
Who may undertake work under a grant of children's legal aid?
Who may undertake work under a grant of children’s legal aid?
Submission of accounts
Preparation of account expenses
Timely submission of account of expenses
Essential information to include in an account
Account entries – narrative
Related or linked accounts
Supporting documentation to submit with an account
Detailed fees
What supporting information will be needed to justify fees charged
Detailed fees for Automatic Children’s Legal Aid
Sheriff Court (excluding automatic legal aid and ABWOR)
Court of Session
Uplift in Fees not available
The Detailed Account
Charges for attending court
Charging for meetings with client
Perusal charges
Charges for preparation
Charges for telephone calls
Charges for affidavits and precognitions
Charges for framing documents
Charges for letters and citations
Charges for miscellaneous formal work
Travel
Fees chargeable for travel
Reimbursement of fees and outlays
Eligibility for interim reimbursement of fees and outlays
Procedure for seeking payment of interim outlays / fees
The Account (outlays)
Including outlays within your account
Solicitor travel outlays
General guidance on witness expenses applicable to all witness types
Outlays for expert witnesses cited to attend court
Outlays for professional witnesses cited to attend court
Outlays for ordinary witnesses cited to attend court
Fees payable to Sheriff officers and Messengers at arms
Counsels fees
Practice notes
Practice Note No 2, 2018: Children’s referrals
Practice Note No. 1, 2018: Children’s Referrals Under The Children’s Hearings (Scotland) Act 2011
