All guidance

Advice and Assistance

• Table of fees

• 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 that 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

• Verification of financial eligibility for advice and assistance or ABWOR

  • Financial verification for civil advice and assistance: an introduction
  • Financial verification for advice and assistance: general principles
  • Advice and assistance eligibility and financial verification: your client’s responsibilities and what they should be aware of
  • 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: required 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
  • Determination: cover for representation before the First-tier Tribunal (Asylum Support)

• 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

• Table of fees

• After a grant, and prior approval needed

  • After a grant: extensions or amendments to grants of civil legal aid
  • Key points about approval
  • Applying for approval before, during and after a grant of legal aid
  • Employment of counsel
  • Employment of expert witnesses
  • Instructing a medical or health professional
  • Practical guidance to give to witnesses
  • Practical guidance to give to experts
  • Work likely to involve unusually large expenditure
  • Work of an unusual nature
  • After a grant: prior approval and the execution of diligence
  • Stage reporting
  • Closed Material Procedure under the Justice and Security Act 2013
  • Changes of nominated solicitor
  • TOOL: funding for child welfare report
  • TOOL: prior approval required if not acting as an expert?
  • TOOL: find a template prior approval
  • TOOL: common types of work involving unusually large expenditure or unusual work

• 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

• 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

• Changes of circumstances and withdrawal of legal aid

  • Duty to report change of circumstances
  • 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 your client is incompatible with continued grant
  • Termination of legal aid in cases of false or incomplete information

• 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

• Financial assessment

  • Financial eligibility for civil legal aid: general conditions and limits
  • Choosing the right financial 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 applications
  • Will my client be liable to pay a contribution?

• 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

• 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

• 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

• Reporting requirement: whether or not submitting a claim on the Fund

  • Duty to report whether or not submitting a claim on the Fund

VAT

• Value Added Tax (VAT) – how it is applied on legal aid accounts

Accounts common queries

• Accounts: Common queries in relation to the preparation and submission of legal aid accounts

Advice and Assistance Accounts

• Table of fees

• ABWOR accounts information

  • Civil ABWOR accounts: what is ABWOR and who may provide it?
  • List of ABWOR proceedings for which our prior approval is needed
  • ABWOR accounts and the employment of counsel: requirement of prior approval, and charges for unauthorised advocacy
  • ABWOR and charges for affidavits
  • ABWOR and sequestration proceedings: block fees payable and charges subsumed
  • ABWOR payments for hearings before tribunals
  • ABWOR accounts and instructing local agents
  • ABWOR and our assessment of fees for preparation: specific information required

• Accounts - charging

  • A&A accounts: no work chargeable before advice and assistance is granted
  • Providing sufficient narrative information for the assessment of account entries
  • A&A Accounts: fees for the initial meeting and taking instructions from the client
  • Charging for meetings with clients
  • A&A fees payable for letters
  • A&A accounts and telephone calls: rates allowable and information you should provide with the account entry
  • A&A fees payable for the taking of precognitions
  • A&A Accounts: the rate payable for perusal of documents

• 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

• 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?

• Issues arising with different types of A&A

  • A&A for conveyancing work: requirement for increase to be granted and implications for property recovered or preserved
  • A&A charges for Criminal Injuries Compensation Agency work: no fees payable for precognitions

• 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

• Preparation and submission of an account

  • Preparing an A&A account: no charge payable
  • Submission of A&A accounts including diagnostics
  • Guidance on submission of accounts where both A&A and civil legal aid have been provided
  • Circumstances where a higher limit of expenditure may be available
  • Vouching: information you should retain in your file
  • A&A accounts and increases in authorised expenditure: what is chargeable and on what basis?

• 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 the tribunal: information you should provide

• Travel

  • When does travel become chargeable under A&A? Information you must be satisfied on
  • A&A and general rules for travel-related charges
  • A&A charges for consecutive days’ travel: is it cost effective?
  • 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

• Who may give advice and assistance

  • Understanding what is properly chargeable in accounts: who can provide advice and assistance?
  • Advice and assistance accounts: delegation of work to unqualified person
  • A&A/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

Civil legal aid accounts

• Table of fees

• Civil Tables of Fees, mixing blocks and details, Sheriff Appeal court and time limits for submitting accounts

  • Charging your account on the correct Tables of Fees
  • Submission of account of expenses and completion of account synopsis: when must your final account be submitted by?
  • Circumstances where we are entitled to apportion or modify inclusive fees
  • Inclusive Fees charged with reference to units

• Block fees: sheriff court summary cause

  • Schedule 2 Chapter III Parts 1 and 2: Accounts in respect of summary cause proceedings

• Block fees: sheriff court executry business

  • Schedule 2 Chapter IV: Accounts in respect of executry business

• 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 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 – where proof is by means of affidavits

• 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, counterclaims and transfers of solicitor
  • Civil legal aid block fee accounts: progress fees
  • Civil legal aid block fee accounts: Continued Options Hearing or Continued Full Case Management Hearing
  • Civil legal aid block fee accounts: fees chargeable for motions and minutes
  • Civil legal aid block fee accounts: list of miscellaneous fees
  • Civil legal aid accounts: summary of settlement provisions and when chargeable
  • Civil legal aid block fee accounts: fees for preparation
  • Civil legal aid block fee accounts: conduct & waiting
  • Civil legal aid accounts: activities covered by the conduct fee
  • Civil legal aid block fee 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
  • 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

  • Procedure for submitting interim claims on or after 1 October 2022

• 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 unreasonable 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

• Expenses

  • Expenses in favour of an assisted person
  • Expenses awarded against your client
  • 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

• 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

Interpreting and translating

• Language interpreting and translation

Carrying out criminal legal assistance

• Table of fees

• Availability of advice and assistance

  • Definition and scope of criminal advice and assistance
  • Criminal ABWOR and “representation”
  • Initial limits and increases in authorised expenditure
  • Who may grant and provide criminal advice and assistance?
  • Who is a person for the purpose of receiving criminal AA?
  • Cases where our prior approval is required to grant criminal A&A
  • Admitting client to A&A and date of commencement of advice
  • Initial checks and steps when granting A&A
  • Single grant under fixed payment ABWOR in summary criminal proceedings
  • Single payment under A&A/ABWOR in criminal proceedings
  • Criminal A&A: our functions and responsibilities, you and the assisted person

• Advice and assistance application procedures

  • Notification of a grant of A&A, provision of ABWOR and your client’s declaration
  • Assessment of financial eligibility for criminal advice and assistance, financial limits in Keycard and contribution
  • Determination of disposable capital and disposable income
  • Financial assessment and verification of capital – to be checked even in passport benefit cases
  • Financial assessment and verification of income
  • Verification of financial eligibility in criminal A&A
  • Verification: application of the tests of “necessary” and “practicable”
  • Advice on obtaining and retaining documentary evidence and the age of documentary evidence
  • Cases where documentary evidence not available immediately
  • Verification where your client is in custody or in prison
  • Multiple grants of advice and assistance
  • Advice and Assistance for early resolution of cases
  • The need to work within initial limit of authorised expenditure and increases in authorised expenditure
  • Increases for the employment of counsel, expert witnesses and other third parties
  • Increases in post-conviction ABWOR breaches and reviews, multiple deferred sentences and templates
  • 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
  • Advice to or on behalf of children
  • Changes of nominated solicitor under advice and assistance
  • Second solicitor giving advice and assistance on the same matter: prior authority required
  • Procedure for withdrawing from giving advice and assistance/private charging after a grant of advice and assistance

• Assistance by way of representation (ABWOR) in summary criminal proceedings

  • General scope of ABWOR in summary criminal proceedings
  • The basics of making ABWOR available in summary criminal proceedings
  • Your role to grant ABWOR
  • Our role to do post-grant verification checks – A&A and ABWOR
  • ABWOR where client is not appearing from custody – when is it available?
  • Failure to appear – appearance on a warrant – continued availability of ABWOR
  • ABWOR for early resolution of cases
  • ABWOR where client not appearing from custody: the interests of justice test
  • ABWOR in summary cases – assisted person in custody – “appointed solicitor”
  • Definition of “appointed solicitor” and principal criteria for acting
  • Criteria and conditions to act as appointed solicitor
  • Examples of situations where you cannot appear as appointed solicitor on behalf of a client
  • Change of solicitor under summary criminal ABWOR
  • Criminal ABWOR – common queries

• Assistance by way of representation in other criminal proceedings

  • General scope of ABWOR in non-summary criminal proceedings
  • Eligibility criteria for general ABWOR (other than ABWOR in summary criminal proceedings)
  • The provision of general criminal ABWOR
  • General ABWOR proceedings for which a financial test is necessary
  • Proceedings under the Criminal Procedure (Scotland) Act 1995
  • Double jeopardy cases
  • General ABWOR proceedings for which a financial test is not necessary
  • ABWOR proceedings needing our prior authority
  • Recovery proceedings under ABWOR needing our prior authority

• Assistance by way of representation 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

• General availability of criminal legal aid

  • 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 the High Court
  • Separate applications for legal aid under summary and solemn procedure
  • When to make an application for automatic criminal legal aid, solemn and summary criminal legal aid and an appeal case
  • Criminal legal aid for a referral to the European Court, compatibility issues and the UK Supreme Court

• 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 trials, mental health proof, examination of facts, section 62 or 63 appeals
  • Automatic legal aid for new prosecution for the same or similar offence
  • Automatic legal aid for cases involving sexual offences, child witnesses, vulnerable witnesses and the Domestic Abuse (Scotland) Act 2018
  • Intimation form for automatic criminal legal aid

• Court duty solicitor arrangements

  • Our obligation to make a court duty solicitor available
  • Identification parades and purposes for which a court duty solicitor must be available in solemn and summary procedures
  • Continuity of representation outwith your period of court 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
  • Solicitors’ fees for Identification Parades, Judicial Examinations and Duty Scheme
  • Appointed solicitors, duty solicitor/half fee, prevaricating witness
  • Responsibilities and obligations of the court duty solicitor and the relationship with the nominated solicitor
  • Advice and assistance when acting as court duty solicitor

• Criminal legal aid applications to the court

  • Applications to the court for legal aid in a summary 23(1)(b) case
  • How to complete a court application form CRIM/COURTAPP

• Applications for Exceptional Case Status in summary criminal proceedings

  • Exceptional case status application in summary proceedings
  • Factors we take into account when assessing exceptional case status

• Applications in summary criminal proceedings

  • Availability of criminal legal aid in summary proceedings
  • Applying for legal aid in summary proceedings
  • Time limit for applications in summary proceedings
  • Statutory criteria for a grant of criminal legal aid in summary proceedings
  • Statutory factors to be taken into consideration when applying the interests of justice test in JP Court cases
  • Special urgency in summary criminal proceedings
  • Review of a refusal of an application in summary proceedings
  • Glasgow Alcohol Court and other problem Solving Courts 

• Financial eligibility for summary criminal legal aid

  • Undue hardship test in summary criminal legal aid applications
  • Assessing disposable income
  • Changes in financial circumstances
  • Assessing disposable capital

• Applications in solemn proceedings

  • Availability of legal aid in solemn criminal 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

• Financial eligibility for solemn criminal legal aid

  • Assessing disposable income in solemn proceedings
  • Undue hardship test in solemn criminal legal aid applications
  • Assessing disposable capital
  • Changes in financial circumstances

• Approval for an expert witness

  • Approval for the employment of expert witnesses procedures and timings
  • Limits on expenditure
  • Type of expert witnesses and their qualifications
  • Is it reasonable to employ the particular expert?
  • Expert Witnesses’ rates, travel and other expenses
  • Approval for an expert – what work is covered?
  • Template applications
  • Retrospective requests for the approval of Expert Witnesses – the “special reason” test
  • Additional guidance on specific expert witnesses – defence post mortems, drug experts, psychologists, psychiatrists, forensic accountants

• Approval for counsel

  • Approval for counsel – test, definitions and principles
  • Circumstances where approval for counsel is required
  • Circumstances where prior approval for counsel is not required
  • Circumstances where we cannot grant prior approval
  • Approval of counsel in Sheriff court proceedings
  • Approval of counsel at the Petition stage in High Court proceedings
  • Applications for employment of senior counsel, more than one junior counsel and senior counsel acting alone
  • Appeal Court cases
  • UK Supreme Court cases
  • Retrospective requests for the approval of counsel – the “Special reason” test
  • Division of duties between you and counsel
  • Instructing a solicitor advocate

• Work that needs our prior approval after legal aid granted

  • Applying for prior approval

• Approval for unusual work

  • Definitions and work we consider to be of an unusual nature
  • Work we do not consider unusual
  • Approval for costs of special measures for child witnesses and vulnerable adult witnesses
  • Taking defence statements in High Court cases
  • Statements in multiple accused cases
  • No ability to apply for retrospective approval

• Approval for unusually large expenditure

  • Circumstances where you do not need to apply for approval
  • Circumstances where you need to apply for prior approval
  • Guidelines for applying for approval – supporting documents, issues to be addressed and costs
  • How we will assess the application
  • No ability to apply for retrospective approval
  • Expert witnesses’ costs
  • Approval for costs of special measures for child witnesses and vulnerable adult witnesses
  • Statements in multiple accused cases
  • Taking defence statements in High Court cases

• Criminal legal aid applications for appeals

  • General availability of criminal legal aid for appeals and status as distinct proceedings
  • Choosing the right legal aid declaration form for criminal appeals
  • Supporting documentation you should provide in a legal aid application for a criminal appeal
  • Availability of special urgency for criminal appeals
  • Appeal applications where financial eligibility test to be applied and information on assessing a client’s disposable income
  • Information on assessing a client’s disposable capital where financial test to be applied in a criminal appeal application
  • Availability of legal aid in appeals for a client with other rights or facilities to assist with legal costs
  • Timing issues: when to apply for legal aid for a criminal appeal
  • Criminal legal aid for late appeals
  • Legal aid application for an appeal where leave to appeal is not required
  • Review of our refusal to grant legal aid for a criminal appeal
  • Criminal legal aid and a Crown appeal: is a separate legal aid application required?
  • Availability of legal aid and tests you should address in an application for legal aid for an appeal to the UK Supreme Court
  • Power of the High Court to determine interests of justice test in appeal applications
  • Legal aid for an appeal by a person convicted of an offence who has since died Criminal legal aid for appeals in Scottish Criminal Cases Review Commission cases
  • Criminal legal aid for appeals in Scottish Criminal Cases Review Commission cases

• High cost cases

  • Criminal cases subject to special arrangements
  • How we assist you in high cost/complex cases
  • Our role in identifying and avoiding duplication of work across high cost cases
  • Good practice in complex criminal cases – High Court Protocol

• Change of solicitor

  • Nominated solicitor ceasing to act for the assisted person
  • Client dispensing with your services
  • Assisted person wants another solicitor to act
  • Turnaround time for applications for change of solicitor

• 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

VAT

• Value Added Tax (VAT) – how it is applied on legal aid accounts

Accounts common queries

• Accounts: Common queries in relation to the preparation and submission of legal aid accounts

Criminal Advice & Assistance and ABWOR accounts

• CJSA, Counter Terrorism, Police Station Advice

Criminal legal aid accounts

• Interim payment procedure for fees and/or outlays

  • Procedure for submitting interim claims on or after 1 October 2022

Criminal fixed payment accounts

• Table of fees

• Introduction to summary criminal fixed payments

  • What are fixed payments?
  • Summary Criminal Reforms April 2023
  • 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”)
  • 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 core fixed payment in the sheriff court where the case does not proceed to trial beyond the first 30 minutes)
  • Schedule 1B fee (the ABWOR core fixed payment in the JP and 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 of the account
  • 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

• 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 & Sheriff court)
  • Summary of Schedule 1B – Part 2 Drug Court (Sheriff 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

Solemn accounts

• Solemn Fees chargeable under schedule 1A, Part 2

Interpreting and translating

• Language interpreting and translation

Children's Advice and Assistance

• Table of fees

• 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 your client’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 in proceedings under the Children’s Hearings (Scotland) Act 2011
  • The limit of authorised advice and assistance 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 children’s advice and assistance be given at the same time as children’s legal aid?
  • Could a client receiving advice and assistance end up paying money recovered or preserved back to the Legal Aid Fund?

• Assistance by Way of Representation for children’s proceedings

  • General scope of ABWOR in proceedings under the 2011 Act and Part 4 of the 2019 Act
  • Templated increases in authorised expenditure for certain hearing types where ABWOR has been granted under the 2011 Act
  • Availability of ABWOR to the subject child
  • Availability of ABWOR to relevant persons and deemed relevant persons in 2011 Act proceedings
  • Availability of ABWOR to a ‘section 126 individual’
  • Availability of ABWOR to a ‘non-deemed relevant person’ under the 2011 Act
  • Availability of ABWOR to a ‘Participation Individual’ and to a ‘Non Deemed Participation Individual’ under the 2011 Act
  • The effective participation test
  • When fresh grants or applications for ABWOR are required for 2011 Act proceedings
  • When fresh grants of advice and assistance (not ABWOR) are required in 2011 Act Proceedings
  • Examples of when you should make a fresh grant or application for ABWOR or where an increase request is sufficient for the next hearing in 2011 Act proceedings

• 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
  • 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

• Increases in authorised expenditure

  • When increases in children’s cases are required: different types of children’s hearings and court 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 under the 2011 Act
  • Independent experts attending and participating at children’s hearings under the 2011 Act
  • 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

• 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
  • Client’s eligibility on income
  • Cases where no documentary evidence of eligibility is immediately available
  • Verification in prisoners’ cases
  • What period should documentary evidence cover?

Children's Legal Aid

• Table of fees

• Legal Aid for Children’s Proceedings

  • General scope of children’s legal aid for 2011 Act Cases
  • Children’s Hearings (Scotland) Act 2011
  • Availability of children’s legal aid
  • Online declaration/your client’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
  • 2011 Act 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 2011 Act children’s court proceedings
  • 2011 Act Applications for children’s legal aid on behalf of a child
  • 2011 Act applications 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 under the Children’s Hearings (Scotland) Act 2011 where your client is a child
  • Statutory criteria for legal aid for sheriff court proceedings under the Children’s Hearings (Scotland) Act 2011 where your client is a relevant person or deemed relevant person
  • Statutory criteria for legal aid for sheriff court appeal proceedings relating to deemed or undeemed relevant person status
  • Statutory criteria for legal aid for sheriff court appeal proceedings under the Children’s Hearings (Scotland) Act 2011 where a client 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 under the Children’s Hearings (Scotland) Act 2011
  • 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 which may affect financial assessment

• 2011 Act 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 you as the child’s solicitor) on behalf of a child
  • Application by a safeguarder
  • Application by a curator ad litem for 2011 and 2019 Act appeals to the Sheriff Appeal Court or Court of Session
  • Statutory criteria for legal aid for appeals under the 2011 Act to the Sheriff Appeal Court and Court of Session where your client is a child
  • Statutory criteria for legal aid for 2011 Act appeals to the Sheriff Appeal Court and Court of Session where your client is a relevant person/deemed relevant person
  • Statutory criteria for legal aid for appeals under the 2011 Act to the Sheriff Appeal Court and Court of Session where your client is seeking deemed relevant person status or has been undeemed relevant
  • Statutory criteria for legal aid for 2011 Act appeals to the Sheriff Appeal Court and Court of Session where your client is a section 126 individual
  • Other rights and facilities
  • Supporting information you should send with the application for an appeal under the 2011 Act
  • 2011 Act appeals from the Sheriff Appeal Court to the Court of Session
  • Representations from the Children’s Reporter (or other party) in a 2011 Act appeal
  • 2011 Act appeals raised 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 2011 Act appeal and a remit to the sheriff court for disposal

• Special Urgency for proceedings under the 2011 and 2019 Acts

  • Special Urgency cover for steps in 2011 Act court proceedings before a decision is made on a legal aid application
  • The Declaration
  • Guidance on applying for special urgency cover under the 2011 Act and the 2019 Act
  • 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
  • What happens if your client does not comply with our requests for information?

• Procedures after legal aid is granted

  • What work requires prior approval from us for 2011 Act proceedings?
  • General guidance on approval for counsel
  • Applying for approval for counsel in children’s proceedings
  • Factors that may justify the employment of junior counsel
  • Approval for two or more junior counsel, or 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 approval for counsel cover in 2011 Act court proceedings?
  • When you need approval to employ an expert
  • Applying for approval to employ an expert
  • Selecting an appropriate expert
  • Prior approval required for experts and limitations on their costs
  • Approval for unusual expenditure or work likely to involve unusually large expenditure
  • What information should be provided in support of an application for approval for unusual expenditure or work likely to involve unusually large expenditure?
  • Approval for unusual work or work likely to incur 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
  • Reconsideration of approval application refusals or approval part grants
  • Changes of nominated solicitor and withdrawing from acting

• High cost or complex cases

  • High cost and complex cases
  • Dedicated staff members in high cost/complex cases
  • 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

• Changes in circumstances and withdrawal of legal aid

  • Duty to report change of circumstances
  • 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

Age of Criminal Responsibility (Scotland) Act 2019 Part 4

• Proceedings under Part 4 Age of Criminal Responsibility (Scotland) Act 2019

Children's Duty Scheme

• Table of fees

• PVG registration requirements

  • PVG registration requirement for the children’s duty scheme
  • How to PVG register for the first time
  • How to update your current PVG registration

• Duty Scheme and Recommendation Requests

  • The Children’s Duty Scheme and Automatic Legal Aid
  • Operation of duty scheme under the 2011 Act
  • The children’s duty scheme and providing automatic legal aid under the 2011 Act
  • When you cease to be a subject child’s duty solicitor
  • Claims for payment for the provision of automatic legal aid by the duty solicitor
  • Recommendation requests under the Children’s Hearings (Scotland) Act 2011 – Rule 50 and 61

VAT

• Value Added Tax (VAT) – how it is applied on legal aid accounts

Accounts common queries

• Accounts: Common queries in relation to the preparation and submission of legal aid accounts

Children's Accounts

• Table of fees

• Interim payment procedure for fees and/or outlays

  • Procedure for submitting interim claims on or after 1 October 2022

• Introduction to children’s legal aid fees

  • Introduction to Children’s accounts legislation
  • Basis on which we assess requests for payment of children’s fees and outlays: the standard of taxation
  • Tables of fees available for children’s legal aid
  • What information should you supply with your children’s legal aid account?

• Who may undertake work under a grant of children's legal aid?

  • Understanding what is properly chargeable in accounts: who can 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
  • Commencement of chargeable work
  • Charges for attending court
  • Charging for meetings and consultations
  • Perusal charges
  • Charges for preparation and research
  • Charges for telephone calls
  • Charges for affidavits and precognitions
  • Charges for framing documents
  • Charges for citations, letters and electronic communication
  • Charges for miscellaneous work

• Travel

  • Fees chargeable for travel

• Outlays

  • Including outlays within your account
  • 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

Interpreting and translating

• Language interpreting and translation

Children (Scotland) Act 1995

• 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

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

Legal aid for Criminal contempt of court proceedings

• Criminal: General scope of legal aid in contempt of court proceedings
• Criminal: Who can provide legal aid for contempt of court? Legal aid registration requirements
• Criminal: Availability of legal aid for contempt of court proceedings
• Criminal: Contempt proceedings at first instance: power of the court to assign you or counsel
• Criminal: Legal aid in contempt proceedings at first instance: applying to the court and eligibility criteria
• Criminal: Legal aid in contempt appeals: applications to us and tests applied
• Criminal: Contempt of court: refusals of legal aid
• Criminal: Sanction in contempt of court cases
• Criminal: Termination of legal aid in contempt cases: application of Regulation 8 and implications

Legal aid for Civil contempt of court proceedings

• Civil: General scope of legal aid in contempt of court proceedings
• Who can provide legal aid for contempt of court in civil proceedings? Legal aid registration requirements
• Availability of legal aid for contempt of court proceedings
• Civil: Contempt proceedings at first instance: power of the court to assign you or counsel
• Civil: Legal aid in contempt proceedings at first instance: applying to the court and eligibility criteria
• Civil: Legal aid in contempt appeals: applications to us and tests applied
• Civil: Contempt of court: refusals of legal aid
• Civil: Sanction in contempt of court cases
• Civil: Termination of legal aid in contempt cases: application of Regulation 8 and implications

Legal aid for Children's contempt of court proceedings

• Children’s: General scope of legal aid in contempt of court proceedings
• Children’s: Who can provide legal aid for contempt of court? Legal aid registration requirements
• Children’s: Availability of legal aid for contempt of court proceedings
• Children’s: Contempt proceedings at first instance: power of the court to assign you or counsel
• Children’s: Legal aid in contempt proceedings at first instance: applying to the court and eligibility criteria
• Children’s: Legal aid in contempt appeals: applications to us and tests applied
• Children’s: Contempt of court: refusals of legal aid
• Children’s: Sanction in contempt of court cases
• Children’s: Termination of legal aid in contempt cases: application of Regulation 8 and implications

VAT

• Value Added Tax (VAT) – how it is applied on legal aid accounts

Accounts common queries

• Accounts: Common queries in relation to the preparation and submission of legal aid accounts