LEGAL AID AND ADVICE, SCOTLAND Citation and commencement 1 These Regulations may be cited as the Advice and Assistance (Scotland) Regulations 1996 and shall come into force on 7th October 1996. 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; “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; “child" means a person under 16 years ... ; “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; and “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 . “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. 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. Revocations and savings 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 a 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-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 in relation to the Civil Jurisdiction and Judgments Act 1982 5 1 Sections 8, 11 and 12(3) of the Act shall be modified to the extent provided in the following sub-paragraphs in the case of an application for advice and assistance in relation to the recognition of enforcement of a judgment under section 5 of the Civil Jurisdiction and Judgments Act 1982 by an applicant to whom this regulation applies, namely:– 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 his 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 regulation 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. Applications on behalf of others 6 1 Persons who may make an application in accordance 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. 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(a). 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. 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 that person financial help towards the expenses of such advice and assistance, the solicitor shall require that person 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 the application must also be countersigned by the client seeking advice and 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 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. 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. 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 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 under an order made by the Employment Appeal Tribunal which continues in existence under section 20 of the 1996 Act or under any settlement arrived at to prevent or bring to an end proceedings in which such an order may be made; v by way of income support, family credit or disability working allowance under section 124, 128 or 129 or an income-based jobseekers 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 payment made out of the social fund under section 138; 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; b to the first £5,009 of any money, or of the value of any property, recovered or preserved by virtue of– i an order for the payment of a capital sum under section 5 of the Divorce (Scotland) Act 1976; ii an order for payment of a capital sum or transfer of property, or an incidental order, under section 8 of the Family Law (Scotland) Act 1985 ; iii any settlement arrived at to prevent or bring to an end proceedings in which such an order may be granted; c to statutory sickness benefit under sections 151 to 163 , incapacity benefit under section 30A(1) , retirement pension under sections 43 to 55 , statutory maternity pay under section 164 , benefits for widows and widowers under sections 36 to 42 , a child’s special allowance under section 56, attendance allowance under section 64, invalid care allowance under section 70 , the mobility component of a 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 or a contribution- based jobseeker’s allowance within the meaning of section 1(4) of the Jobseekers Act 1995 ...; 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 to any payment of money in accordance with an order made under section 21 of the 1996 Act by the Employment Appeal Tribunal; h to any dwelling, 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 to any payment of money in accordance with an order made by an employment tribunal or under any settlement arrived at to prevent or bring to an end proceedings in which such an order may be made. 1 to any payment of money in accordance with an order made by the Social Security Commissioners or the Child Support Commissioners or under any settlement arrived at to prevent or bring to an end proceedings in which such an order may be made 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. Fees and outlays of solicitors 17 1 Subject to paragraph (2) below, fees and outlays allowable to the solicitor upon any assessment or taxation mentioned in regulations 18 and 19 in respect of advice or assistance shall, and shall only, be– 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, in the case of assistance by way of representation, in accordance with the table of fees in Part I of Schedule 3 and, 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. 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. 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 judgment 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. Lindsay Parliamentary Under Secretary of State, Scottish Office St Andrew’s House, Edinburgh 12 September 1996 We concur, Kenneth Clarke Patrick McLoughlin Two of the Lords Commissioners of Her Majesty’s Treasury 19th September 1996