The Advice and Assistance (Assistance by Way of Representation) (Scotland) Regulations 2003

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Assistance by way of representation requiring approval of the BoardS

13.—(1) The approval of the Board shall be required as a pre-condition of the provision of assistance by way of representation in relation to the proceedings described in regulations 3(h), (k), (m) [F1, (s)] [F2, (u) and (w)] [F3, [F43A(1)(a)(ii), (iii) [F5, (iiia) and (iiib)], (b)(ii), (iii) [F5, (iiia) and (iiib)]] , [F6(c) to (f)]] [F7, 4A, 5] [F8and 5A(c) to (e)] above.

(2) The Board shall only approve the provision of assistance by way of representation in relation to the proceedings described in regulation 3(m) [F9and (s)] where it is satisfied that–

(a)the case is arguable;

(b)it is reasonable in the particular circumstances of the case that assistance by way of representation be made available; and

(c)the case is too complex to allow the applicant to present it to a minimum standard of effectiveness in person.

(3) The factors to be taken into account by the Board in determining whether paragraph (2)(c) above applies shall include–

(a)the determination of the issue may involve procedural difficulty or consideration of a substantial question of law, or of evidence of a complex or difficult nature;

(b)the applicant may be unable to understand the proceedings or to state the applicant’s own case because of age, inadequate knowledge of English, mental illness, other mental or physical disability, or otherwise.

[F10(3A) The Board must only approve the provision of assistance by way of representation in relation to the hearings described in regulation [F113A(1)(a)(ii), (iii) [F12, (iiia) and (iiib)], (b)(ii), (iii) [F12, (iiia) and (iiib)]], [F13and (c) to (f)] where it is satisfied that the legal representation is required to allow the child, the relevant person or individual (as the case may be) to participate effectively.]

[F14(3B) The Board must only approve the provision of assistance by way of representation in relation to recovery proceedings where it is satisfied that the legal representation is required to allow the client to participate effectively in the proceedings.]

[F15(3C) The Board must only approve the provision of assistance by way of representation in relation to the proceedings in regulation 4A where it is satisfied that it is in the interests of justice.

(3D) The factors to be taken into account by the Board in determining whether it is in the interests of justice for the purposes of paragraph (3C) that assistance by way of representation be made available include whether—

(a)it is reasonable in the particular circumstances of the case that assistance by way of representation is made available;

(b)the case is too complex to allow the applicant to present it to the minimum standard of effectiveness in person; and

(c)it is in the interests of someone other than the applicant that the applicant be legally represented.]

(4) The Board shall only approve the provision of assistance by way of representation in relation to the proceedings described in [F16regulations [F175A(c) and (e)]] where it is satisfied that [F18the tribunal deciding the case will do so sitting in Scotland and] in all the circumstances of the case it is–

(a)in the interests of justice; and

(b)reasonable,

that assistance by way of representation be made available.

(5) The factors to be taken into account by the Board in determining whether it is in the interests of justice for the purposes of paragraph (4)(a) [F19and (7)] that assistance by way of representation be made available shall include the factors set out at paragraph (3)(a) and (b).

[F20(6) The Board shall only approve the provision of assistance by way of representation in relation to the proceedings described in regulation 5A(d) where it is satisfied—

(a)that the tribunal deciding the case will do so sitting in Scotland; and

(b)as to the matters set out in paragraph (2)(a) to (c).]

[F21(7) The Board must only approve the provision of assistance by way of representation in relation to the proceedings described in regulation 3(w) where it is satisfied that in all the circumstances of the case it is—

(a)in the interests of justice, and

(b)reasonable,

that assistance by way of representation be made available.]

Textual Amendments

F1Word in reg. 13(1) inserted (18.3.2011) by The Advice and Assistance (Assistance by Way of Representation) (Scotland) Amendment (No. 2) Regulations 2011 (S.S.I. 2011/216), regs. 1(1), 2(4)(a)

F2Words in reg. 13(1) substituted (25.9.2020) by The Advice and Assistance (Assistance by Way of Representation) (Scotland) Amendment Regulations 2020 (S.S.I. 2020/296), regs. 1, 2(5)(a)

F3Words in reg. 13(1) inserted (24.6.2013) by virtue of The Childrens Legal Assistance (Scotland) Regulations 2013 (S.S.I. 2013/200), regs. 1, 3(4)(a)

F4Words in reg. 13(1) substituted (26.1.2015) by The Advice and Assistance (Assistance by Way of Representation) (Scotland) Amendment Regulations 2015 (S.S.I. 2015/13), regs. 1, 2(3)(a)

F5Words in reg. 13(1) substituted (23.1.2023) by The Legal Aid and Advice and Assistance (Miscellaneous Amendment) (Scotland) Regulations 2023 (S.S.I. 2023/11), regs. 1, 4(4)(a)(i)

F6Words in reg. 13(1) substituted (23.1.2023) by The Legal Aid and Advice and Assistance (Miscellaneous Amendment) (Scotland) Regulations 2023 (S.S.I. 2023/11), regs. 1, 4(4)(a)(ii)

F7Words in reg. 13(1) substituted (25.1.2018) by The Criminal Legal Assistance (Miscellaneous Amendments) (Scotland) Regulations 2017 (S.S.I. 2017/466), regs. 1, 7(3)(a)

F8Words in reg. 13(1) substituted (9.6.2010) by The Advice and Assistance and Civil Legal Aid (Transfer of Tribunal Functions) (No.2) (Scotland) Regulations 2010 (S.S.I. 2010/239), regs. 1, 4(5)(a) (with reg. 2)