The Advice and Assistance (Scotland) (Consolidation and Amendment) Regulations 1996

[F1 Payment of fees and outlays from property recovered or preserved S

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 M1 ;

(ii) under an order for the payment of a periodical allowance under section 5 of the Divorce (Scotland) Act 1976 M2 , 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 M3 , the Maintenance Orders (Reciprocal Enforcement) Act 1972 M4 or the Civil Jurisdiction and Judgments Act 1982 M5 , may be enforced in Scotland;

(iv) under an order made by the Employment Appeal Tribunal [F2 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 [F3 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 M6 ;

(ix) by way of child support maintenance under the Child Support Act 1991 M7 ;

[F4 (x) by way of any council tax benefit under section 131;]

(b) to the first [F5 £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 M8 ;

(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 M9 , incapacity benefit under section 30A(1) M10 , retirement pension under sections 43 to 55 M11 , statutory maternity pay under section 164 M12 , benefits for widows and widowers under sections 36 to 42 M13 , a child’s special allowance under section 56, attendance allowance under section 64, invalid care allowance under section 70 M14 , 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 1995F6 ...;

(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 M15 recovered or preserved for the client;

(g) to any payment of money in accordance with an order made under section 21 of [F7 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 [F8 ;

(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 SchemeF9 ...][F10 ;

(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.]

[F11 (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.]

Textual Amendments

F1 Reg. 15A inserted (4.12.2004) by The Advice and Assistance (Scotland) Amendment (No. 3) Regulations 2004 (S.S.I. 2004/492), regs. 1, 5

F2 Words in reg. 16(2)(a)(iv) substituted (15.1.2001) by The Advice and Assistance (Scotland) Amendment (No. 2) Regulations 2000 (S.S.I. 2000/399), regs. 1(1), 4(a)

F3 Words in reg. 16(2)(a)(v) substituted (1.4.1997) by The Advice and Assistance (Scotland) Amendment Regulations 1997 (S.I. 1997/726), regs. 1(1), 4(a) (with reg. 2(1))

F4 Reg. 16(2)(a)(x) inserted (6.4.1998) by The Advice and Assistance (Scotland) Amendment Regulations 1998 (S.I. 1998/724), regs. 1(1), 3 (with reg. 2)

F5 Sum in reg. 16(2)(b) substituted (7.4.2008) by The Advice and Assistance (Scotland) Amendment Regulations 2008 (S.S.I. 2008/47), regs. 1, 3 (with reg. 2)

F6 Words in reg. 16(2)(c) omitted (1.4.1997) by virtue of The Advice and Assistance (Scotland) Amendment Regulations 1997 (S.I. 1997/726), regs. 1(1), 4(b) (with reg. 2(1))

F7 Words in reg. 16(2)(g) substituted (15.1.2001) by The Advice and Assistance (Scotland) Amendment (No. 2) Regulations 2000 (S.S.I. 2000/399), regs. 1(1), 4(b)

F8 Reg. 16(2)(i)(j) inserted (1.4.1997) by The Advice and Assistance (Scotland) Amendment Regulations 1997 (S.I. 1997/726), regs. 1(1), 4(c) (with reg. 2(1))

F9 Full stop in reg. 16(2)(j) omitted (15.1.2001) by virtue of The Advice and Assistance (Scotland) Amendment (No. 2) Regulations 2000 (S.S.I. 2000/399), regs. 1(1), 4(c)

F10 Reg. 16(2)(k) inserted (15.1.2001) by The Advice and Assistance (Scotland) Amendment (No. 2) Regulations 2000 (S.S.I. 2000/399), regs. 1(1), 4(c)

F11 Words in reg. 16(2) inserted (1.12.2002) by virtue of The Advice and Assistance (Scotland) Amendment Regulations 2002 (S.S.I. 2002/495), regs. 1, 2(b)

Marginal Citations

M1 1985 c.37.

M2 1976 c.39; section 5 was repealed on 1st September 1986 by the Family Law (Scotland) Act 1985, Schedule 2, subject to a saving in section 28(3) of that Act.

M3 1950 c.37.

M4 1972 c.18.

M5 1982 c.27.

M6 Section 130 was amended by the Local Government Finance Act 1992, Schedule 9, paragraph 3 and by the Local Government etc. (Scotland) Act 1994 (c.39), Schedule 13, paragraph 174(4).

M7 1991 c.48.

M8 Section 8 was amended by the Law Reform (Miscellaneous Provisions) (Scotland) Act 1990 (c.40), Schedule 8, paragraph 34 and by the Pensions Act 1995 (c.26), section 167.

M9 Section 151 was amended by the Social Security (Incapacity for Work) Act 1994 (c.18) (“the 1994 Act"), Schedule 1, paragraph 34; section 157 was amended by the 1994 Act, section 8 and by S.I. 1993/350, 1994/542, 1995/559 and 562; section 158 was amended by the 1994 Act, section 8 and repealed in part by the Statutory Sick Pay Act 1994 (c.2) (“the SSP Act"), section 1; section 159A was inserted by the SSP Act, section 3; and section 163 was amended by the 1994 Act, Schedule 1, paragraph 35 and repealed in part by the 1994 Act, Schedule 2 and the Jobseekers Act 1995 (c.18), Schedule 3.

M10 Section 30A was inserted by the Social Security (Incapacity for Work) Act 1994 (c.18), section 1 and came into force on 13 April 1995 by virtue of S.I. 1994/2926.

M11 Section 44 was amended by the Pension Schemes Act 1993 (c.48) (“the 1993 Act"), Schedule 8, paragraph 38, by the Social Security (Incapacity for Work) Act 1994 (c.18) (“the 1994 Act"), Schedule 1, paragraph 11 and by the Pensions Act 1995 (c.26) (“the 1995 Act"), section 128; section 45A was inserted by the 1995 Act, section 127; section 46 was amended by the 1994 Act, Schedule 1, paragraph 12 and by the 1995 Act, Schedule 4, paragraph 21(5) and was repealed in part by the 1994 Act, Schedule 2; section 47 was amended by the 1993 Act, Schedule 8, paragraph 39, by the 1994 Act, Schedule 1, paragraph 13 and by S.I. 1995/559; sections 49 and 50 were substituted by the 1995 Act, Schedule 4, paragraph 3; section 51A was inserted by the 1995 Act, Schedule 4, paragraph 21(6); section 53 was repealed by the 1995 Act, Schedules 4 and 7; and section 54 was amended by the 1995 Act, section 134 and Schedule 4, paragraph 6 and repealed in part by the 1995 Act, Schedule 7.

M12 Section 164 was repealed in part by S.I. 1994/1230.

M13 Sections 40 to 42 were substituted by the Social Security (Incapacity for Work) Act 1994 (c.18), Schedule 1, paragraphs 8, 9 and 10.

M14 Section 70 was amended and repealed in part by S.I. 1994/2556.

M15 1996 c.18.