The Advice and Assistance (Scotland) Regulations 1996

The Advice And Assistance (Scotland) Regulations 1996

As amended by (older instruments revoked):

The Advice and Assistance and Legal Aid (Online Applications Etc.) (Scotland) Regulations 2011 [S.S.I. 2011 No 161]

The Children’s Legal Assistance (Scotland) Regulations 2013 [S.S.I. 2013 No. 200]

The Welfare Reform (Consequential Amendments) (Scotland) Regulations 2013 [S.S.I. 2013 No. 65]

The Welfare Reform (Consequential Amendments) (Scotland) (No. 2) Regulations 2013 [S.S.I. 2013 No. 137]

The Welfare Reform (Consequential Amendments) (Scotland) (No. 3) Regulations 2013 [S.S.I. 2013 No. 142]

The Legal Aid and Advice and Assistance (Photocopying Fees and Welfare Reform) (Miscellaneous Amendments) (Scotland) Regulations 2013 [S.S.I. 2013 No. 250]

The Legal Aid and Assistance By Way of Representation (Fees for Time at Court and Travelling) (Scotland) Regulations 2014 [S.S.I. 2014 No. 257]

The Advice and Assistance (Proceedings for Recovery of Documents) (Scotland) Regulations 2017 [S.S.I. 2017 No. 291]

The Criminal Legal Assistance (Miscellaneous Amendments) (Scotland) Regulations 2017 [S.S.I. 2017 No. 466]

The Legal Aid and Advice and Assistance (Scotland)(Miscellaneous Amendments) Regulations 2019 [S.S.I 2019 No.78]

The Legal Aid and Advice and Assistance (Miscellaneous Amendments) (Coronavirus) (Scotland) Regulations 2020 [S.S.I. 2020 No. 191]

The Legal Aid and Advice and Assistance (Miscellaneous Amendments) (Scotland) Regulations 2020 [S.S.I. 2020 No 424]

The Criminal Legal Aid and Advice and Assistance (Counter-Terrorism and Border Security) (Scotland) Regulations 2021 [S.S.I. 2021 No.55]

The Legal Aid and Advice and Assistance (Miscellaneous Amendment) (Scotland) Regulations 2021 [S.S.I. 2021 No.56]

The Disability Assistance for Children and Young People (Consequential Amendment and Transitional Provision) (Scotland) Regulations 2021 [S.S.I 2021 No 73]

The Children’s Legal Assistance (Miscellaneous Amendments and Consequential Provisions) (Scotland) Regulations 2021 [S.S.I. 2021 No. 368]

The Legal Aid and Advice and Assistance (Miscellaneous Amendment) (Scotland) (No. 2) Regulations 2021 [S.S.I 2021 No. 333]

The Disability Assistance for Working Age People (Consequential and Miscellaneous Amendment and Transitional Provision) (Scotland) Regulations 202 [S.S.I 2022 No. 31] in force 21 March 2022

The Legal Aid and Advice and Assistance (Miscellaneous Amendment) (Scotland) Regulations 2022 [S.S.I. 2022 No 30] in force from 1 April 2022

The Legal Aid and Advice and Assistance (Miscellaneous Amendments) (Scotland) (No 2) Regulations 2022 [SSI 2022 No 229] in force from 1 October 2022

The Advice and Assistance (Summary Criminal Proceedings) (Miscellaneous Amendment) (Scotland) Regulations 2022 [SSI 2022 No 292] in force 4 November 2022

The Legal Aid and Advice and Assistance (Miscellaneous Amendment) (Scotland) Regulations 2023 [SSI 2023 No 11] in force 23 January 2023

The Legal Aid and Advice and Assistance (Miscellaneous Amendment) (Scotland) (No. 2) Regulations 2023 [SSI 2023 No 135] in force 29 April 2023

The Legal Aid and Advice and Assistance (Miscellaneous Amendment) (Scotland) (No.3) Regulations 2023 [SSI 2023 No 178] in force 21 September 2023

The Legal Aid and Advice and Assistance (Miscellaneous Amendment) (Scotland) (No 4) Regulations 2023 [SSI 2023 No ] in force 15 November 2023

The Carer’s Assistance (Carer Support Payment) (Consequential and Miscellaneous Amendments and Transitional Provision) (Scotland) Regulations 2023 [SSI 2023 No 258] in force 19 November 2023

The Advice And Assistance (Scotland) Regulations 1996

1998 No 2447

The Secretary of State, in exercise of the powers conferred on him by sections 12(3), 33(2)(b) and (3), 36(1), (2)(a), (d) and (e) and (4), 37(1) and (3) and 42 of the Legal Aid (Scotland) Act 1986, and of all other powers enabling him in that behalf, and with the concurrence of the Treasury, in respect of regulation 7 and Schedule 2, hereby makes the following Regulations:

Citation and commencement

   1.—(1)   These Regulations may be cited as the Advice and Assistance (Scotland) Regulations 1996 and shall come into force on 7 October 1996.[1]

Interpretation

   2.—(1)   In these Regulations, unless the context otherwise requires –

“the Act” means the Legal Aid (Scotland) Act 1986;

“the 1992 Act” means the Social Security Contributions and Benefits Act 1992;

“the 1996 Act” means the Employment Tribunals Act 1996;

“the 2011 Act” means the Children’s Hearings (Scotland) Act 2011;

“the 2021 Act” means the Redress for Survivors (Historical Child Abuse in Care) (Scotland) Act 2021;

“the 2022 Act” means the Social Security (Additional Payments) Act 2022;

“the 2023 Act” means the Social Security (Additional Payments) Act 2023;

“the Hague Convention” means the Convention on the International Recovery of Child Support and other forms of Family Maintenance done at The Hague on 23rd November 2007;

“additional payment” means a payment within the meaning given in section 9(1) (interpretation) of the 2022 Act or that given in section 10 (1) (interpretation) of the 2023 Act;

“advice and assistance” means advice and assistance given under Part II of the Act;

“auditor” in relation to the taxation of accounts means the auditor of a sheriff court;

“carer support payment” means carer’s assistance payable under the Carer’s Assistance (Carer Support Payment) (Scotland) Regulations 2023

“child” means a person under the age of 16 years, except in relation to-

(a)   any hearings or proceedings under the 2011 Act, where “child” has the meaning in section 199 of that Act, and

(b)   proceedings under Chapter 3 of Part 4 of the Age of Criminal Responsibility (Scotland) Act 2019, where “child” has the meaning in section 39(3) of that Act

“diagnostic interview” means a meeting or meetings between a solicitor and a client, or as the case may be a person acting on behalf of a client in accordance with regulation 6, and any work reasonably and necessarily following on from any such meeting to include any further work which for the purpose of the provision of advice and assistance relates to a matter, or a range of matters, which are not distinct;

“distinct matter”, in relation to advice and assistance concerning civil matters only, shall be construed in accordance with regulation 8A(2)

“employment tribunal” means a tribunal established under section 1 of the 1996 Act;

“income-related employment and support allowance” means an income-related allowance under Part 1 of the Welfare Reform Act 2007 (employment and support allowance)

“legal representative” means a judicial factor or a person authorised to act on an adult’s behalf under the Adults with Incapacity (Scotland) Act 2000

“redress scheme” has the meaning given in section 2 of the 2021 Act;

“relevant payment” means any payment described in section 42(2) (deduction of previous payment from redress payment) read with section 42(3) and (7) as adjusted in accordance with sections 42(5) and 43 of the 2021 Act;

“safeguarder” means a safeguarder appointed to a child under section 30 or 31 of the 2011 Act

“Scottish child payment” means any payment under Part 3 of the Scottish Child Payment Regulations 2020

“Scottish Infected Blood Support Scheme” means the scheme of that name made by the Scottish Ministers in exercise of powers conferred by section 28 of the Smoking, Health and Social Care (Scotland) Act 2005;

“social fund winter fuel payment” means the winter fuel payment paid by virtue of the Social Fund Winter Fuel Payment Regulations 2000;

“Welfare Fund Payment” means any payment made by a local authority in exercise of the power in section 20 of the Local Government in Scotland Act 2003 and using funds provided by the Scottish Ministers from the Scottish Welfare Fund, where the payment is –

(a)   a crisis payment made for the purpose of meeting an immediate short term need; or

(b)   made for the purpose of meeting a need for community care.

“Windrush Compensation Scheme” means the scheme of that name set out in the Windrush Compensation Scheme (Expenditure) Act 2020

“Windrush connected payment” means a payment where—

(a)   an individual has made a claim under the Windrush Compensation Scheme;

(b)   a request included in that claim has been referred by the Home Office to another person; and

(c)   the payment is made to the individual by that other person as a result of that referral.

   (2)   In these Regulations, unless the context otherwise requires, any reference to a numbered regulation is to one of these Regulations and any reference to a numbered Schedule is to a Schedule to these Regulations.—

Manner of applications etc.

   2A—(1)   Any application to the Board under regulations 8B(3), 12(1), 13, 14A(2) and 16(3) shall be made in such form as the Board may require, which may include an online form.

   (2)   Any statement, information, document, notification, notice or other correspondence, including any copies which require to be sent, given, supplied, or otherwise provided to the Board under regulations 11, 14, 14A(1), 15 and 15A(1) shall be in such form as the Board may require, which may include an online form.

Revocations and saving

   3.—(1)   Subject to paragraphs (2) and (3) below, the Regulations specified in Schedule 1 are hereby revoked.

   (2)   The revocation by these Regulations of —

(i)    transitional provision relating to the coming into force of; or

(ii)   an application provision which restricts the application of,

a provision which is revoked and re-enacted by these Regulations does not affect the operation of that transitional provision, insofar as it remains capable of having effect, in relation to the provision which is re-enacted in these Regulations.

   (3)   Where a period of time specified in any provision, which is revoked by these Regulations, is current at the date of coming into force of these Regulations, these Regulations have effect as if the provision which re-enacts that revoked provision in these Regulations had been in force when that period began to run.

Applications for advice and assistance

  4.—An application for advice and assistance, which shall be in such form as the Board may require, shall be signed by the client, or by a person who may apply on his behalf by virtue of regulation 6, and shall include such information as is necessary to enable the solicitor—

(a)   to determine the client’s disposable capital and either his disposable income or, where appropriate, whether he is in receipt of disability working allowance, income support, an income-related employment and support allowance , universal credit an income-based jobseeker’s allowance (payable under the Jobseekers Act 1995) or family credit; and

(b)   otherwise to satisfy himself as to the client’s eligibility to receive advice and assistance.

Applications for advice and assistance: further provision

  4A.—The requirement in regulation 4 for an application for advice and assistance to be signed does not apply in the case of—

(a)   a client to whom section 32 (right to have a solicitor present) of the Criminal Justice (Scotland) Act 2016 applies;

(b)   a person who is detained under section 41 or schedule 7 of, the Terrorism Act 2000;

(c)   a person who is detained under part 1 of schedule 3 of the Counter-Terrorism and Border Security Act 2019;

(d)   a person who is detained under section 27 of the National Security Act 2023.

Applications for advice and assistance in relation to the Civil Jurisdiction and Judgments Act 1982 or the Hague Convention

   5.—(1)   Sections 8, 11 and 12(3) of the Act shall be modified to the extent provided in paragraph (1A) in the case of an application for advice and assistance in relation to the recognition or enforcement or a judgment under —

(a)    section 5 of the Civil Jurisdiction and Judgments Act 1982 by an applicant to whom paragraph (2) applies, or;

(b)    the Hague Convention by an applicant to whom paragraph (3) applies;

   (1A)   The modifications mentioned in paragraph (1) are that—

(a)    section 8 shall be modified so as to provide that such advice and assistance shall be made available whether within or furth of Scotland without regard to the income or capital of an applicant to whom this regulation applies;

(b)    section 11 shall be modified so as to provide that such applicant shall, irrespective of their disposable income, not require to pay any fees or outlays in respect of such advice and assistance, and;

(c)    section 12(3) shall be modified so as to provide that fees or outlays to which section 12 applies shall be paid to the solicitor in respect of such advice and assistance provided to such applicant-

(i)    firstly, in priority to all other debts, out of any expenses which (by virtue of a judgment or order of a court or an agreement or otherwise) are payable to the applicant by any other person in respect of the matter in connection with which the advice and assistance is provided, and ;

(ii)    secondly, by the Board out of the Fund, following receipt by it of a claim submitted by the solicitor.

   (2)   This paragraph applies to —

(a)   an applicant who seeks advice and assistance in relation to the enforcement of a decision given by an administrative authority in Denmark or Iceland and who presents a statement from, respectively, the Danish Ministry of Justice or the Icelandic Ministry of Justice to the effect that he fulfils the economic requirements to qualify for the grant of complete or partial legal aid or exemption from costs or expenses; and

(b)   an applicant who, in the State of origin of the judgment, has benefited from complete or partial legal aid or exemption from costs or expenses.

   (3)   This paragraph applies to —

(a)    an applicant who is entitled to free legal assistance by virtue of Article 15(1) of the Hague Convention; and

(b)    an applicant who has, in a State bound by the Hague Convention, benefited from complete or partial legal aid or exemption from costs or expenses.

Applications on behalf of others

   6.—(1)   Persons who may make an application in connection with regulation 4 on behalf of a client are—

(a)   where the client on cause shown cannot make an application in accordance with regulation 4, a person authorised by the client; or

(b)   where the client is mentally disordered in terms of section 328 of the Mental Health (Care and Treatment) (Scotland) Act 2003, or is an incapable adult in terms of section 1(6) of the Adults with Incapacity (Scotland) Act 2000, the client’s legal representative

(c)   where the client is a child in terms of the 2011 Act, and the application concerns hearings or proceedings under that Act, a safeguarder or other lay representative of the child

   (2)   Without prejudice to any right of a child to apply under regulation 4 or to authorise application on his behalf under paragraph (1) of this regulation, application for advice and assistance on behalf of a child may be made by any person having parental responsibilities within the meaning of section 1(3) of the Children (Scotland) Act 1995 in relation to the child or by any person in whose care he is, or by a person acting for the purpose of any proceedings as his tutor or curator.

   (3)   An application for advice and assistance in relation to the recognition or enforcement of a judgment under section 5 of the Civil Jurisdiction and Judgments Act 1982 may be signed on behalf of the client by the solicitor to whom the application is made.

Determination of disposable income or disposable capital

   7.—(1)   Insofar as the Act requires a client’s disposable income or disposable capital to be determined for purposes of an application for advice and assistance, they shall be determined by the solicitor to whom application is made in accordance with the provisions of Schedule 2.

(2)   For the purposes of section 42 of the Act, two persons living together as husband and wife or in a relationship which has the characteristics of the relationship between husband and wife except that the persons are of the same sex shall be treated as if they were spouses of each other.

(3)   For the purpose of determining a client’s disposable income and disposable capital, and the amount of any contribution required under section 11 of the Act, the personal resources of a person making an application for advice and assistance on behalf of a client under regulation 6 are to be disregarded.

   (4)   For the purpose of determining a client’s disposable income and disposable capital, and the amount of any contribution required under section 11 of the Act, where an application for advice and assistance is made by a person and where the person is concerned as claiming or having an interest in the property, financial affairs or personal welfare of an adult under the Adults with Incapacity (Scotland) Act 2000, the personal resources of the person making an application for advice and assistance shall be disregarded and the determination shall be made by reference to the personal resources of the incapable adult.

Giving of advice and assistance by solicitor

   8.—(1)   A solicitor shall give advice and assistance in pursuance of Part II of the Act only if he has satisfied himself that the client is eligible to receive advice and assistance under the provisions of the Act and of these Regulations.—

   (2)   Where a solicitor approves an application for advice and assistance under Part II of the Act, for the purposes of the tables of fees in Schedule 3, the solicitor shall determine —

(a)   that the subject matter to which the advice and assistance relates is a civil, criminal or children’s matter; and

(b)   that the advice and assistance relates to one or more distinct matters,

in accordance with any guidance issued from time to time by the Board.

Civil Advice and Assistance

   8A.—(1)   Where a solicitor approves an application for advice and assistance in relation to a civil matter under Part II of the Act, the solicitor shall determine whether or not the advice and assistance relates to a distinct matter.

(2)   Subject to paragraphs (3) and (4), an application for advice and assistance relates to a distinct matter if the subject matter of the application is determined by the Board, in accordance with guidance issued by it, to be treated as distinct.

(3)   Any determination by the Board as to the matters which are or are not to be treated as distinct matters may only be made following consultation with the Law Society.

(4)   Where a matter has been determined by the Board to be treated as a distinct matter, the Board may not determine that the matter is no longer to be so treated unless the Scottish Ministers consent.

(5)   Where the subject matter to which the advice and assistance relates is a distinct matter the solicitor may approve one application for advice and assistance which shall include—

(a)   all distinct matters reasonably ancillary thereto; and

(b)   all matters reasonably ancillary thereto which are not distinct.

   8B.—(1)   Where the subject matter to which the advice and assistance relates is not distinct, the solicitor shall give advice and assistance to the client by way of a diagnostic interview.

(2)   Where a client has more than one subject matter upon which he seeks advice and assistance, none of which is distinct, the solicitor may approve one application for advice and assistance for all such matters.

(3)   Where a solicitor, having approved and proceeded to provide advice and assistance by way of a diagnostic interview, considers that a subject matter which is not distinct should be treated as if it were so, then he may make application to the Board for the subject matter to be so treated.

   (4)   On receipt of an application under paragraph (3), the Board shall

(a)   determine that the subject matter should be so treated; or

(b)   reject the application,

as the Board thinks fit.

   (5)   Where a client has more than one subject matter upon which he seeks advice and assistance and the advice and assistance relates to both distinct matters and matters which are not distinct and which are not reasonably ancillary to the distinct matters then the solicitor shall keep a separate record of the advice and assistance given by way of a diagnostic interview.

Information to be recorded in criminal matters

   8C.   Where advice and assistance is given in relation to a criminal matter, the solicitor must record—

(a)   whether the matter is one as regards which—

(i)   a complaint has been served;

(ii)   a fixed penalty, compensation or work offer has been made under section 302, 302A or 303ZA of the Criminal Procedure (Scotland) Act 1995;

(iii)   liability for another non-court penalty has arisen;

(b)   if not such a matter, a note of the details of the event to which the advice and assistance relates;

(c)   a summary of the nature and content of the advice and assistance;

(d)   any relevant case or other reference number.

Determination and collection of contributions

   9.—(1)   Where a client is liable by virtue of section 11 of the Act to pay a contribution towards the cost of the advice and assistance, the solicitor shall determine the maximum amount which the client is, by virtue of that section, liable to pay, and may collect that contribution in full or in such instalments as may be agreed between him and the applicant.

   (2)   Where by agreement the client’s contribution is payable by instalments and the client defaults in making payment of any instalment, the solicitor shall be entitled to cease to act, without prejudice to his right to require payment of any deficiency in respect of work done and outlays incurred, or to the right of the client to demand an accounting from the solicitor for sums already paid.

(3)   Where the total contribution payable is likely to exceed the cost of giving advice or assistance, the solicitor shall require the client to pay a sum sufficient only to meet the expected cost.

Applicant for advice and assistance having other rights and facilities

   10.—(1)   Where it appears to the solicitor that an applicant for advice and assistance under Part II of the Act has available rights and facilities making it unnecessary for him to obtain such advice and assistance or has a reasonable expectation of obtaining financial or other help from a body of which he is a member, the solicitor shall not approve the application unless the applicant has not succeeded in enforcing or obtaining such rights, facilities or help, after having taken, in the opinion of the solicitor, all reasonable steps to enforce or obtain them:

   Provided that the applicant shall not, for the purpose of this regulation, be deemed to have failed to take all reasonable steps by reason only that he has not taken proceedings by way of declarator or otherwise to enforce or obtain such rights, facilities or help.

   (2)   Where the solicitor approves an application for advice and assistance under Part II of the Act by a person who is a member of a body which might reasonably have been expected to give him financial help towards the expenses of such advice and assistance, the solicitor shall require him to sign an undertaking to pay to the Board any sum received from that body on account of the expenses of the advice and assistance.

Notice to the Board on acceptance of application

   11.—   The solicitor shall, within 14 days of his having begun to give advice and assistance, send to the Board a copy of the client’s application. Failure to do so within the specified time limit, unless the Board considers that there is special reason for it to excuse such failure, shall render the solicitor’s fees and outlays ineligible for payment in terms of section 12(3) of the Act.

Authority to exceed financial limit

   12.—(1)   Where at any time it appears to the solicitor that the cost of giving the advice and assistance is likely to exceed the limit applicable under section 10 of the Act or under paragraph (2) below, he shall apply to the Board for its approval to an increased limit, stating the reasons for the excess, the likely amount, and giving such other information as may enable the Board to consider and determine that application.

   (2)   ) The Board, if it approves an application made under paragraph (1) above—

(a)   shall authorise such increased limit as it thinks fit; and

(b)   may require that the advice and assistance be subject to such conditions, and limited to such subject matter, or, in the case of assistance by way of representation, such proceedings (or stages of proceedings), as it thinks fit.

   (3)   The Board shall inform the solicitor of its decision in regard to an application under paragraph (1) above.

Giving of advice and assistance on the same matter

   13.—(1)   A client shall not be given advice or assistance in respect of the same matter by more than one solicitor without the prior authority of the Board, and such authority shall be given only on such terms and conditions as the Board may see fit to impose.

(2)   Application for authority under paragraph (1) above shall be made by the second or subsequent solicitor who shall indicate his willingness to act for the client seeking such advice or assistance and shall include a statement of the reasons for seeking such authority

(3)   Subject to paragraph (4), no second or further diagnostic interview is allowable in relation to a civil matter during the period of 3 months immediately following the approval of advice and assistance by way of a diagnostic interview

   (4)   In exceptional circumstances and on cause shown a second or further diagnostic interview may be allowable during said period of 3 months, upon application to, and approval by, the Board.

   (5)   The Board shall approve or refuse any such application, as it thinks fit.

(6)   A client is not to be given advice and assistance by the same solicitor in relation to the same criminal matter (whether or not at the relevant time the subject of proceedings) more than once without the prior approval of the Board.

   (7)   The Board may (on an application for the purpose of paragraph (6) above)—

(a)   refuse to give its approval; or

(b)   give its approval unconditionally or on such conditions as it may impose.

Procedure on withdrawal from giving advice and assistance

  14.—Where the solicitor declines to continue giving advice and assistance to a client in respect of a particular matter, he shall —

(a)   give notice to the Board of his withdrawal and of his reasons for withdrawing; and

(b)   inform the client of the provisions of regulation 13.

Change of solicitor etc.

   14A.—(1)   Where the solicitor who is providing assistance by way of representation in relation to a summary criminal matter has been required by the client to cease to act (other than where paragraph (2) below applies), the solicitor is to—

(a)   notify the Board of that fact; and

(b)   provide it with a statement of the circumstances so far as known to the solicitor

   (2)   Where a client who is being provided assistance by way of representation in relation to a summary criminal matter wishes to have it provided by a different solicitor, the client is to—

(a)   apply to the Board for authority to have that solicitor provide the assistance; and

(b)   inform it of any reason for the application.

   (3)   The Board may grant an application under paragraph (2) above if it is satisfied that there is a good reason for the application.

(4)   This regulation does not apply to proceedings under sections 19, 30 or 36(1)(a) of the Criminal Justice (Scotland) Act 2016 or paragraphs 29 or 36 of schedule 8 of the Terrorism Act 2000, or paragraphs 37 or 44 of schedule 6 of the National Security Act 2023.

Supply of information by solicitors

   15.—   A solicitor who gives advice and assistance shall supply the Board with such information as the Board may require for the purposes of performing its functions under the Act, and shall not be precluded by reason of any privilege arising out of the relationship between solicitor and client from disclosing such information to the Board.

Supply of information by clients

   15A.—(1)   A client who is receiving or has been in receipt of advice and assistance in relation to a civil matter shall supply to the Board such information or documents as the Board may require for the purposes of performing its functions under the Act.

(2)   Where a client who is receiving or has been in receipt of advice and assistance fails to comply with a requirement under paragraph (1) above the Board shall have the right to recover from that client any amount paid out of the Fund in respect of the fees and outlays of any solicitor who has provided advice and assistance to that client..

Payment of fees and outlays from property recovered or preserved

   16.—(1)   In this regulation, unless the context otherwise requires, any reference to a numbered section is to a section bearing that number in the 1992 Act.

(2)   The right to prior payment of fees or outlays out of any property recovered or preserved which is created by section 12(3)(c) of the Act shall not apply —

(a)   to any money paid

(i)   under a decree following on an action for aliment within the meaning of the Family Law (Scotland) Act 1985;

(ii)   under an order for the payment of a periodical allowance under section 5 of the Divorce (Scotland) Act 1976, or for the making of a periodical allowance under section 8 of the Family Law (Scotland) Act 1985;

(iii)   under any order for the periodical payment of sums for the maintenance of any person which, by virtue of the Maintenance Orders Act 1950, the Maintenance Orders (Reciprocal Enforcement) Act 1972 or the Civil Jurisdiction and Judgments Act 1982, may be enforced in Scotland;

(iv)   revoked

(v)   by way of income support, family credit or disability working allowance under section 124, 128 or 129, an income-related employment and support allowance or an income-based jobseeker’s allowance or a back to work bonus (payable under the Jobseekers Act 1995);

(vi)   by way of aliment or periodical allowance or periodical payment of sums by virtue of any settlement arrived at to prevent or bring to an end proceedings in which such a decree or order as is mentioned in sub-paragraphs (i) to (iii) above may be granted;

(vii)   by way of any Welfare Fund payment;

(viii)   by way of any housing benefit under section 130;

(ix)   by way of child support maintenance under the Child Support Act 1991;

(x)   by way of any council tax benefit under section 131;

(xi)   by way of universal credit under Part 1 of the Welfare Reform Act 2012.

(xii)   by way of any payment made under the Windrush Compensation Scheme

(xiii)   by way of any Windrush connected payment

(xiv)   by way of any Scottish child payment

(xv)   by way of any payment made under Part 4 of the 2021 Act (financial redress for historical child abuse), or any relevant payment made or due to be made prior to the date of commencement of the redress scheme;

(xvi)   by way of any payment made under the Scottish Infected Blood Support Scheme;

(xvii)   by way of an additional payment under the 2022 Act or the 2023 Act at any time since the coming into force of those Acts.

(b)   revoked

(c)   to statutory sickness benefit under sections 151 to 163(d), incapacity benefit under section 30A(1)(e), retirement pension under sections 43 to 55(f), statutory maternity pay under section 164(g), benefits for widows and widowers under sections 36 to 42(h), a child’s special allowance under section 56, attendance allowance under section 64, invalid care allowance under section 70(i), disability living allowance under section 71, guardians allowance under section 77, industrial death benefit under paragraphs 14 to 21 of Schedule 7 to the 1992 Act, contributory employment and support allowance, personal independence payment under Part 4 of the Welfare Reform Act 2012, personal independence payment under or a contribution-based jobseeker’s allowance within the meaning of section 1(4) of the Jobseekers Act 1995;

(ca)   armed forces independence payment under the Armed Forces and Reserve Forces (Compensation Scheme) Order 2011;

(cb)   to child disability payment given in accordance with the Disability Assistance for Children and Young People (Scotland) Regulations 2021 or short-term assistance given in accordance with Part 1 of the schedule (short-term assistance) of those Regulations,

(cc)   to adult disability payment given in accordance with the Disability Assistance for Working Age People (Scotland) Regulations 2022 or short-term assistance given in accordance with Part 1 of schedule 2 (short-term assistance) of those Regulations,

(cd)    to carer support payment given in accordance with the Carer’s Assistance (Carer Support Payment) (Scotland) Regulations 2023

(d)   to child benefit paid under section 141;

(e)   to allowances and benefits for industrial injuries paid under sections 94 to 111;

(f)   to one half of any redundancy payment within the meaning of Part XI of the Employment Rights Act 1996 recovered or preserved for the client;

(g)   revoked;

(h)   to any household furniture or tools of trade recovered or preserved for the client as a result of advice and assistance given to him by the solicitor

(i)   to any payment made under the Community Care (Direct Payments) Act 1996 or under section 12B of the Social Work (Scotland) Act 1968;

(j)   to any payment made by the Secretary of State under the Earnings Top-Up Scheme;

(k)   revoked

(l)   to any payment of money in accordance with an order made by the Social Security Commissioners or under any settlement arrived at to prevent or bring to an end proceedings in which such an order may be made

(m)   to any payment of money in accordance with an order made by the Upper Tribunal in relation to proceedings described in regulation 5A(d) of the Advice and Assistance (Assistance by Way of Representation) (Scotland) Regulations 2003 or under any settlement arrived at to prevent or bring to an end proceedings in which such an order may be made;

(n)   to any temporary additional amount to the social fund winter fuel payment paid by virtue of the Social Fund Winter Fuel Payment (Temporary Increase) Regulations 2022 or the Social Fund Winter Fuel Payment (Temporary Increase) Regulations 2023.

   (3)   The Board may authorise that the requirement created by section 12(3)(c) of the Act that, before recourse to the Fund, fees or outlays shall be paid to the solicitor out of any property which is recovered or preserved for the client shall not apply in relation to the whole or any part of any such property in any case where on application by the solicitor the Board are satisfied that —

(a)   payment out of the property to which the requirement would otherwise apply would cause grave hardship or distress to the client; or

(b)   (i)   the solicitor has taken all reasonable steps to obtain payment out of the property to which the requirement would otherwise apply; and

(ii)   payment to the solicitor out of that property could only be effected with unreasonable difficulty or after unreasonable delay.

Interim payments

   16A.—(1)   This regulation applies where a claim is made for interim payment under the Act.

(2)   [Revoked]

(3)   In relation to a claim for interim payment made in accordance with this regulation, the Board may disapply the requirement created by section 12(3)(c) of the Act that, before recourse to the Fund, fees or outlays shall be paid to the solicitor out of any property which is recovered or preserved for the client, in relation to the whole or any part of any such property.

(4)   For the avoidance of doubt, except where otherwise provided section 12 of the Act continues to apply to all other fees or outlays.

(5)   Paragraph (6) applies where the Board has made an interim payment in accordance with this regulation to a solicitor who provided advice and assistance to a person, and at any time prior to or after such payment that person or any solicitor acting on that person’s behalf has, in respect of the same matter for which advice and assistance was provided

(a)   received any expenses which (by virtue of a judgment or order of a court or an agreement or otherwise) are payable to that person; or

(b)   recovered or preserved any property (of whatever nature and wherever situated), including that person’s rights under any settlement arrived at in connection with the matter in order to avoid or bring to an end any proceedings.

   (6)   Where this paragraph applies, the Board may recover any sum paid out of the Fund to the solicitor in respect of the advice and assistance so given, from either—

(a)   the solicitor to whom the interim payment from the Fund was made; or

(b)   the person to whom the advice and assistance was provided.

   (7)   In any case to which paragraph (6) applies the sum recoverable by the Board shall be the amount of the interim payment made, less any amount which would have been properly payable by way of fees and outlays under section 12(3)(d) of the Act, taking into account the expenses or property referred to in paragraph (5).

Fees and outlays of solicitors

   17.—(1)   Fees and outlays of solicitors—

(a)   fees for work actually, necessarily and reasonably done in connection with the matter upon which advice and assistance was given, due regard being had to economy, calculated—

(i)   in the case of assistance by way of representation, in accordance with the table of fees in Part I of schedule 3; and

(ii)   in any other case, in accordance with the table of fees in Part II of schedule 3; and

(b)   outlays actually, necessarily and reasonably incurred in connection with that matter, due regard being had to economy, provided that, without prejudice to any other claims for outlays, there shall not be allowed to a solicitor outlays representing posts and incidents.

   (1A)   In the application of paragraph (1)(a) above to fees for work actually, necessarily and reasonably done in connection those matters described in—

(a)   Part III of Schedule 3, the reference to Part I of schedule 3 in paragraph (1)(a) above should be read as a reference to Part III of schedule 3;

(b)   Part IV of Schedule 3, the reference to Part II of schedule 3 in paragraph (1)(a) should be read as a reference to Part IV of schedule 3;

(c)   Part V of schedule 3, the reference to part I of schedule 3 in paragraph (1)(a) above should be read as a reference to Part V of schedule 3;

(d)   Part VI of schedule 3, the reference to part II of schedule 3 in paragraph (1)(a) above should be read as a reference to part VI of schedule 3.

(e)   Part VII of schedule 3, the reference to part I of schedule 3 in paragraph (1)(a) above should be read as a reference to part VII of schedule 3;

(f)   Part VIII of schedule 3, the reference to part II of schedule 3 in paragraph (1)(a) above should be read as a reference to part VIII of schedule 3.

   (1B)   —An inclusive fee of £572.00 is payable, subject to paragraph (1C), instead of any fee that would otherwise be payable under paragraph (1)(a)(ii) where—

(a)   one solicitor represents the client and—

(i)   the solicitor was appointed by the client;

(ii)   a decision has been made to prosecute the matter in respect of which the solicitor has been appointed in the sheriff court;

(iii)   the solicitor has submitted a letter of engagement to the procurator fiscal;

(iv)   a copy of the complaint has been issued to the solicitor by the procurator fiscal; and

(v)   the case is resolved and concluded prior to proceedings commencing.

(b)   one solicitor represents two or more clients in the same case and the requirements in heads (i) to (v) of sub-paragraph (a) are met in respect of each of those clients;

(c)   more than one solicitor acts for a client in the same case and—

(i)   each solicitor was appointed by the client;

(ii)   a decision has been made to prosecute the matter in respect of which each solicitor has been appointed in the sheriff court;

(iii)   each of the solicitors has submitted a letter of engagement to the procurator fiscal;

(iv)   a copy of the complaint has been issued to each of the solicitors by the procurator fiscal; and

(v)   the case is resolved and concluded prior to proceedings commencing.

   (1C)   Where an inclusive fee is payable under paragraph (1B) in the circumstances where—

(a)   sub-paragraph (b) applies, the solicitor is to be paid—

(i)   100% of the inclusive fee in respect of the first client;

(ii)   40% of the inclusive fee in respect of the second client; and

(iii)   20% of the inclusive fee in respect of each subsequent client;

(b)   sub-paragraph (c) applies, each solicitor is to be paid an equal share of the total amount payable

   (2)   The fees and outlays allowable to the solicitor under paragraph (1) above shall not exceed the limit applicable under section 10 of the Act as read with regulation 12.

(3)    In the application of paragraph (1) above so far as concerning assistance by way of representation in relation to a summary criminal matter, there is to be taken into account time necessarily spent in travelling to and from the relevant court (other than one in the town or other place where the solicitor has a place of business) or any other place visited for the purpose of preparing or conducting the defence.

(4)   Paragraph (3) above does not apply if it would have been more economical to use a local solicitor (where that would have been reasonable in the interests of the client).

(4A)   In the application of paragraph (1) above to recovery proceedings, the fees allowable to the solicitor shall be assessed as if the advice and assistance was a criminal matter.

   (4B)   In paragraph (4A), “recovery proceedings” means proceedings relating to an application for an order for recovery of documents, in connection with criminal proceedings, in which—

(a)   the documents sought include medical or other sensitive documents relating to a client;

(b)   the application has been intimated to the client: and

(c)   the client wishes to oppose recovery of the documents on the basis that the granting of the order would infringe their rights under Article 8 of the European Convention of Human Rights.

   (5)   This regulation (so far as concerning criminal matters) is subject to the Criminal Legal Aid (Fixed Payments) (Scotland) Regulations 1999.

Assessment and taxation of fees and outlays

   18.—(1)   Where the solicitor considers that the fees and outlays properly chargeable for the advice or assistance exceed any contribution payable by the client under the provisions of section 11 of the Act together with any expenses or property recovered or preserved under the provisions of section 12 of the Act as read with regulation 16, he shall, within one year of the date when the giving of advice and assistance was completed, submit an account to the Board:.

Provided that, where civil legal aid has been made available to an applicant to whom in connection with the same matter advice and assistance has been given, the account for such advice and assistance shall be submitted to the Board at the same time as that for civil legal aid; and any work which is charged under civil legal aid shall not be charged in the advice and assistance account.

(2)   The Board may accept an account for advice and assistance submitted outwith the period referred to in paragraph (1) above if it considers that there is a special reason for late submission.

(3)   Where the Board receives an account in accordance with paragraph (1) above, it shall assess the fees and outlays allowable to the solicitor for the advice and assistance in accordance with regulation 17 and shall determine accordingly any sum payable out of the Fund and pay it to the solicitor.

   (3A)   Where the solicitor has given advice and assistance by way of a diagnostic interview then he shall, within 3 months of the date when the giving of the advice and assistance was completed, submit an account to the Board separate from any account or accounts submitted under paragraph (1). No account supplementary to that provided for in this paragraph may be submitted.

   (4)   If the solicitor is dissatisfied with any assessment of fees and outlays by the Board under paragraph (3) above, he may require taxation of his account by the auditor; the auditor shall tax the fees and outlays allowable to the solicitor for the advice and assistance in accordance with regulation 17, and such taxation shall be conclusive of the fees and outlays so allowable.

Client’s right to require taxation

   19.—(1)   In any case where there is no such excess as is mentioned in regulation 18(1) and any fees and outlays in respect of the advice and assistance are payable by the client under the provisions of section 11 of the Act or are payable out of any expenses payable to the client or any property recovered or preserved for the client under the provisions of section 12 of the Act, the client may, if he is dissatisfied with the amount of those fees and outlays, require taxation of those fees and outlays by the auditor; the auditor shall tax the fees and outlays allowable to the solicitor in respect of the advice and assistance in accordance with regulation 17, and such taxation shall be conclusive of the amount of the fees and outlays so allowable.

   (2)   In any case where the fees and outlays allowable to a solicitor in respect of advice and assistance in accordance with regulation 17 are less than any contribution paid by the client under section 11 of the Act, the solicitor shall refund the excess contribution.

Fees and outlays recoverable from a third party

   20.   Regulations 17, 18 and 19 shall not apply to fees and outlays recoverable in respect of advice and assistance to a client from a third party and, where such fees and outlays are to be taxed, they shall be taxed as if the advice and assistance were not advice and assistance under the Act.

Right of Board to recover sums paid out of the Fund

   21.—(1)   This regulation applies where after giving a person an opportunity of submitting representations, the Board is satisfied —

(a)   that the person has wilfully failed to comply with these Regulations as to the information to be furnished by that person;

(b)   that the person has knowingly made a false statement or false representation in furnishing such information; or

(c)   that the Board has paid fees and outlays to a solicitor who provided advice and assistance to that person, and at any time prior to or after such payment that person or any solicitor acting on that person’s behalf has, in respect of the same matter for which advice and assistance was provided—

(i)   received any expenses which (by virtue of a judgement or order of a court or an agreement or otherwise) are payable to that person; or

(ii)   recovered or preserved any property (of whatever nature and wherever situated), including that person’s rights under any settlement arrived at in connection with the matter in order to avoid or bring to an end any proceedings;

such expenses or property not having been declared to the Board by either that person or any solicitor acting on that person’s behalf.

   (2)   Where this regulation applies, the Board shall have the right to recover from that person any sum paid out of the Fund to the solicitor in respect of the advice and assistance so given.

(3)    In any case to which paragraph (1)(c) above applies the sum recoverable by the Board under paragraph (2) above shall be the amount of fees and outlays paid, less any amount which would have been properly payable by way of fees and outlays under section 12(3)(d) of the Act had the expenses or property been declared to the Board.

Right of Board to withhold payment or recover sums paid out of the Fund in relation to non-criminal matters

   22.—(1)   Paragraph (3) applies where the Board finds that the provision of advice and assistance (other than advice and assistance in relation to criminal matters)—

(a)   was not (wholly or partly) in accordance with the relevant rules applying by virtue of the Legal Aid (Scotland) Act 1986; or;

(b)   was otherwise unjustified in the circumstances of the case (including by reason of inadequate assessment or verification of any relevant factor).

   (2)   In considering whether or not the provision of advice and assistance was in accordance with the relevant rules, the Board may have regard to any guidance it has issued in relation to the application of those rules.

(3)   The Board may—

(a)   withhold (wholly) payment from the Fund in respect of the advice and assistance provided; or;

(b)   if such payment has been made, fully recover it.

St Andrew’s House, Edinburgh

12 September 1996

19 September 1996

SCHEDULE 1

Regulation 3

SCHEDULE 2

ASSESSMENT OF DISPOSABLE CAPITAL AND DISPOSABLE INCOME

Regulation 7

   1.   In this Schedule, unless the context otherwise requires –

“capital” means the amount or value of every resource of a capital nature;

“dependent person” means a person wholly or substantially maintained by the person concerned;

“income” means the total income from all sources which the person concerned received or became entitled to during or in respect of the seven days up to and including the date of his application;

“the person concerned” means the person whose disposable capital and disposable income are to be determined.

   2.   [revoked]

   2A.—(1)   Any question arising under this Schedule is to be decided by the solicitor in accordance with paragraphs (2) and (3) below.

(2)   The solicitor must, for the purpose of ascertaining the capital and income of the person concerned—

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

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

   (3)   The solicitor must have regard to any guidance issued by the Board regarding the application of this Schedule.

   3.   The disposable capital and disposable income of the person concerned shall be the capital and income as determined by the solicitor after making such deductions as are to be made under the provisions of this Schedule.

   4.   If it appears to the solicitor that the person concerned has, with intent to reduce his disposable capital or disposable income or maximum contribution, whether for the purpose of making himself eligible for advice and assistance, reducing his liability to pay a contribution towards advice and assistance or otherwise, directly or indirectly deprived himself of any resource or has converted any part of his resources into resources which are to be left out of account wholly or partly, the resources of which he has so deprived himself or which he has so converted shall be treated as part of his resources or as not so converted, as the case may be.

   4A.—(1)   Subject to sub-paragraph (3), if the person concerned is a child the resources of any person who owes an obligation of ailment to the child under section 1(1)(c) or (d) of the Family Law (Scotland) Act 1985 are to be treated as part of the child’s own resources.

(2)   In sub-paragraph (1), “child” has the meaning given in section 1(5) of the Family Law (Scotland) Act 1985.

(3)   Sub-paragraph (1) applies only—

(i)    in respect of advice and assistance in relation to non-criminal matters; and

(ii)   if its application in the particular circumstance would not be unjust or inequitable.

   (4)   This paragraph does not apply to assistance by way of representation in relation to hearings or proceedings under the 2011 Act.

   5.   In computing the capital and income of the person concerned—

(a)   there shall be left out of account the value of the subject matter of any claim in respect of which the person concerned is applying for advice and assistance;

(b)   there shall be left out of account a back to work bonus (payable under the Jobseekers Act 1995);

(ba)   there shall be left out of account any payment made under the Community Care (Direct Payments) Act 1996 or under section 12B of the Social Work (Scotland) Act 1968;

(bb)   there shall be left out of account any Welfare Fund payment;

(bc)   there shall be left out of account-

(i)   any payment made under the Windrush Compensation Scheme;

(ii)   there shall be left out of account any Windrush connected payment;

(bd)   there shall be left out of account any payment made under Part 4 of the 2021 Act (financial redress for historical child abuse), or any relevant payment made or due to be made prior to the date of commencement of the redress scheme;

(be)   there shall be left out of account any payment made under the Scottish Infected Blood Support Scheme;

(bf)   there shall be left out of account any additional payment;

(bg)   there shall be left out of account any temporary additional amount to the social fund winter fuel payment paid by virtue of the Social Fund Winter Fuel Payment (Temporary Increase) Regulations 2022 or the Social Fund Winter Fuel Payment (Temporary Increase) Regulations 2023.

(c)   the resources of any spouse of the person concerned shall be treated as that person’s resources unless—

(i)   the spouse has a contrary interest in the matter in respect of which the person concerned is applying for advice and assistance, or

(ii)   the person concerned and spouse are living separate and apart, or

(iii)   in all the circumstances of the case it would be inequitable or impracticable to do so.

(d)   there shall be left out of account any payment made in accordance with the following:—

(a)   payments under the 1992 Act (except statutory sick pay);

(aa)   personal independence payment under Part 4 of the Welfare Reform Act 2012;

(aza)   child disability payment given in accordance with the Disability Assistance for Children and Young People (Scotland) Regulations 2021,

(azb)   short-term assistance given in accordance with Part 1 of the schedule of those Regulations,

(azc)   adult disability payment given in accordance with the Disability Assistance for Working Age People (Scotland) Regulations 2022 (“the 2022 Regulations”),

(azd)   short-term assistance given in accordance with Part 1 of schedule 2 of the 2022 Regulations,

(aze)   carer support payment given in accordance with the Carer’s Assistance (Carer Support Payment) (Scotland) Regulations 2023,

(ab)   armed forces independent payment under the Armed Forces and Reserve Forces (Compensation Scheme) Order 2011;

(c)   child maintenance bonus;

(d)   child support maintenance;

(e)   contribution-based jobseeker’s allowance;

(f)   severe disablement allowance;

(g)   retirement pension;

(h)   war widow’s and widower’s pension and war disablement pension;

(i)   sums payable to holders of the Victoria Cross or George Cross

(j)   state pension credit under the State Pension Credit Act 2002;

(k)   contributory employment and support allowance

(l)   universal credit.

(m)   Scottish child payment.

   6.   In computing the capital of the person concerned—

(a)   the value of his household furniture and effects, of articles of personal clothing and of the tools and implements of his trade shall be left out of account;

(b)   there shall be left out of account the value of the main or only dwelling in which he resides;

(c)   where the applicant has an interest in a dwelling other than the main one in which he resides, there shall be taken into account any sum which may be obtained by borrowing money on the security thereof;

(d)   where the person concerned is living with one or more of the following persons, namely, a spouse whose resources are required to be aggregated with his or a dependent person, a deduction shall be made of £335 in respect of the first person, £200 in respect of the second person and £100 in respect of each further person.

   7.   In computing the income of the person concerned—

(a)   there shall be left out of account—

(i)   any income tax paid or payable on income treated under the provisions of this Schedule as his income;

(ii)   the amount estimated to have been paid by way of contributions under the 1992 Act or any scheme made under that Act in respect of the seven days up to and including the date of the application for advice or assistance;

(b)   there shall be left out of account any payment made by the Secretary of State under the Earnings Top-up Scheme 1996;

(c)   there shall be a deduction in respect of the maintenance of the spouse of the person concerned, if the spouses are living together, in respect of the maintenance of any dependent person, being a member of his or her household, at the following rates:—

(i)   in the case of a spouse, at a rate equivalent to the difference, as at the date when the application for advice and assistance is made, between the income support allowance for a couple where both members are aged not less than 18 (which is specified in column (2) of paragraph 1(3)(d) of Part I of Schedule 2 to the Income Support (General) Regulations 1987), and the allowance for a single person aged not less than 25 (which is specified in column (2) of paragraph 1(1)(e) of Part I of Schedule 2 to those Regulations);

(ii)   in the case of a dependent person aged under 19, at a rate equivalent to the amount specified in column (2) of paragraph 2(1) of Part I of Schedule 2 to the Income Support (General) Regulations 1987 appropriate to that person as at the date when the application for advice and assistance is made;

(iii)   in the case of a dependent person aged 19 or over, at a rate equivalent to the amount specified in column (2) of paragraph 2(1)(b) of Part 1 of Schedule 2 to the Income Support (General) Regulations 1987, as at the date when the application for advice and assistance is made.

   8.   If the person concerned is making bona fide payments for the maintenance of a spouse who is living apart, of a former spouse or of a child or relative who is not (in any such case) a member of the household of the person concerned, there shall be a deduction of such payment as was made during or in respect of the seven days up to and including the date of the application for advice and assistance.

   9.   Where it appears to the solicitor that there has been some error or mistake in the determination of the disposable income, disposable capital or maximum contribution of the person concerned, he may redetermine the disposable income or disposable capital or maximum contribution or, as the case may be, amend the determination, and in the latter case the amended determination shall for all purposes be substituted for the original determination.

   10.—(1)   Where the person concerned is of pensionable age and his weekly disposable income (excluding any net income derived from capital) is less than the current amended figure thereof as prescribed in section 11(2)(a) of the Act there shall be disregarded the amount of capital as specified in the following table:—

(2)   In this Schedule “pensionable age” means the age of 60.

Endnotes:

[1]   As amended by S.I. 1997 No. 726 (in force from 1 April 1997) to the effect that the Advice and Assistance (Scotland) (Consolidation and Amendment) Regulations 1996 are to be cited simply as the Advice and Assistance (Scotland) Regulations 1996.