Chwilio Deddfwriaeth

Chwiliad Uwch

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

Help about what version

Pa Fersiwn

Help about advanced features

Nodweddion Uwch

Rhagor o Adnoddau

Changes to legislation:

There are outstanding changes not yet made by the legislation.gov.uk editorial team to The Advice and Assistance (Scotland) (Consolidation and Amendment) Regulations 1996. Any changes that have already been made by the team appear in the content and are referenced with annotations. Help about Changes to Legislation

Close

Changes to Legislation

Revised legislation carried on this site may not be fully up to date. Changes and effects are recorded by our editorial team in lists which can be found in the ‘Changes to Legislation’ area. Where those effects have yet to be applied to the text of the legislation by the editorial team they are also listed alongside the legislation in the affected provisions. Use the ‘more’ link to open the changes and effects relevant to the provision you are viewing.

View outstanding changes

Changes and effects yet to be applied to :

Changes and effects yet to be applied to the whole Instrument associated Parts and Chapters:

Whole provisions yet to be inserted into this Instrument (including any effects on those provisions):

Statutory Instruments

1996 No. 2447 (S.192)

LEGAL AID AND ADVICE, SCOTLAND

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

Made

19th September 1996

Laid before Parliament

24th September 1996

Coming into force

7th October 1996

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 1986M1, 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:

Marginal Citations

Citation and commencementS

1.  These Regulations may be cited as the [F1Advice and Assistance (Scotland) Regulations 1996] and shall come into force on 7th October 1996.

Textual Amendments

InterpretationS

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 M2;

  • [F2“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 yearsF3... [F4;

  • [F5“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]

  • [F5“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.]

  • [F6“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.

Textual Amendments

Marginal Citations

Revocations and savingsS

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 assistanceS

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 [F7, 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.

Textual Amendments

Applications for advice and assistance in relation to the Civil Jurisdiction and Judgments Act 1982S

5.—(1) Sections 8, 11 and 12(3) of the Act M3 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 M4 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.

Marginal Citations

M3Sections 8 and 11 of the Legal Aid (Scotland) Act 1986 were amended by the Social Security Act 1986 (c.50), Schedule 10, paragraph 61.

Applications on behalf of othersS

6.—[F8(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 [F9section 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 M5 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.

Textual Amendments

Marginal Citations

Determination of disposable income or disposable capitalS

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.

[F10(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.]

[F11(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.]

[F12(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.]

Textual Amendments

[F13 Giving of advice and assistance by solicitorS

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.]

Textual Amendments

[F14Civil Advice and AssistanceS

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.

Textual Amendments

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.]

Textual Amendments

Determination and collection of contributionsS

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.

Modifications etc. (not altering text)

Applicant for advice and assistance having other rights and facilitiesS

[F1510.—(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.]

Textual Amendments

Notice to the Board on acceptance of applicationS

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.

Modifications etc. (not altering text)

Authority to exceed financial limitS

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 matterS

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.

[F16(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.]

Textual Amendments

Procedure on withdrawal from giving advice and assistanceS

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 solicitorsS

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.

[F17Supply of information by clientsS

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.

Textual Amendments

Payment of fees and outlays from property recovered or preservedS

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 M6;

(ii)under an order for the payment of a periodical allowance under section 5 of the Divorce (Scotland) Act 1976 M7, 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 M8, the Maintenance Orders (Reciprocal Enforcement) Act 1972 M9 or the Civil Jurisdiction and Judgments Act 1982 M10, may be enforced in Scotland;

(iv)under an order made by the Employment Appeal Tribunal [F18which 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 [F19or 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 M11;

(ix)by way of child support maintenance under the Child Support Act 1991 M12;

[F20(x)by way of any council tax benefit under section 131;]

(b)to the first [F21£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 M13;

(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 M14, incapacity benefit under section 30A(1) M15, retirement pension under sections 43 to 55 M16, statutory maternity pay under section 164 M17, benefits for widows and widowers under sections 36 to 42 M18, a child’s special allowance under section 56, attendance allowance under section 64, invalid care allowance under section 70 M19, 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 1995F22...;

(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 M20 recovered or preserved for the client;

(g)to any payment of money in accordance with an order made under section 21 of [F23the 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 [F24;

(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 SchemeF25...][F26;

(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.]

[F27(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

Marginal Citations

M71976 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.

M11Section 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).

M14Section 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.

M15Section 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.

M16Section 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.

M17Section 164 was repealed in part by S.I. 1994/1230.

M19Section 70 was amended and repealed in part by S.I. 1994/2556.

Fees and outlays of solicitorsS

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.

Modifications etc. (not altering text)

Assessment and taxation of fees and outlaysS

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.

[F28(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.

Textual Amendments

Modifications etc. (not altering text)

Client’s right to require taxationS

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.

Modifications etc. (not altering text)

Fees and outlays recoverable from a third partyS

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 FundS

[F2921.—[F30(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.]

[F31(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.]]

Textual Amendments

Modifications etc. (not altering text)

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

Regulation 3

SCHEDULE 1S

TitleReference
The Advice and Assistance (Scotland) Regulations 1987S.I. 1987/382
The Advice and Assistance (Scotland) Amendment Regulations 1987S.I. 1987/883
The Advice and Assistance (Scotland) Amendment (No.2) Regulations 1987S.I. 1987/1356
The Advice and Assistance (Scotland) Amendment Regulations 1988S.I. 1988/489
The Advice and Assistance (Scotland) Amendment (No.2) Regulations 1988S.I. 1988/1131
The Advice and Assistance (Scotland) Amendment Regulations 1989S.I. 1989/506
The Advice and Assistance (Scotland) Amendment (No.2) Regulations 1989S.I. 1989/1492
The Advice and Assistance (Scotland) Amendment Regulations 1990S.I. 1990/632
The Advice and Assistance (Scotland) Amendment (No.2) Regulations 1990S.I. 1990/1037
The Advice and Assistance (Scotland) Amendment Regulations 1991S.I. 1991/567
The Advice and Assistance (Scotland) Amendment Regulations 1992S.I. 1992/373
The Advice and Assistance (Scotland) Amendment (No.2) Regulations 1992S.I. 1992/752
The Advice and Assistance (Scotland) Amendment Regulations 1993S.I. 1993/533
The Advice and Assistance (Scotland) Amendment (No.2) Regulations 1993S.I. 1993/819
The Advice and Assistance (Scotland) Amendment Regulations 1994S.I. 1994/1061
The Advice and Assistance (Scotland) Amendment Regulations 1995S.I. 1995/1066
The Advice and Assistance (Scotland) Amendment Regulations 1996S.I. 1996/811

Regulation 7

SCHEDULE 2S ASSESSMENT OF DISPOSABLE CAPITAL AND DISPOSABLE INCOME

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

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

  • [F32“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.

Textual Amendments

2.  Any question arising under this Schedule shall be decided by the solicitor, and the solicitor, in deciding any such question, shall have regard to any guidance which may from time to time be given by the Board as to the application of this Schedule.S

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.S

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.S

5.  In computing the capital and income of the person concerned–S

(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;

[F33(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; and]

(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.

[F34(d)there shall be left out of account any payment made in accordance with the following:–

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

(b)tax credits under the Tax Credits Act 2002;

(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

[F35(j) state pension credit under the State Pension Credit Act 2002.]

Textual Amendments

6.  In computing the capital of the person concerned–S

(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 [F36or 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.

Textual Amendments

7.  In computing the income of the person concerned–S

(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 [F37that 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 M21;

[F38(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 [F39(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 [F40(2)] of paragraph [F412(1)(b)] of Part I of Schedule 2 to the Income Support (General) Regulations 1987 [F42as at the date when the application for advice and assistance is made];]

Textual Amendments

Marginal Citations

M21This Scheme, which applies only in certain areas of Great Britain, is an extra-statutory Scheme introduced by the Secretary of State for Social Security having effect on 8th October 1996. Copies of the Rules of the Scheme may be obtained from the Customer Service's Manager, Earnings Top-up, Norcross, Blackpool, FY5 3TA and will be available for inspection at the Department of Social Security, 9th Floor, Adelphi, 1-11 John Adam Street, London WC2N 6H5 and Offices of the Benefits Agency and Employment Job Centres which serve the area specified in Schedule 1 to the Scheme.

8.  If the person concerned is makingbona 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.S

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.S

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:–S

Weekly disposable income (excluding net income derived from capital)Amount of capital disregarded
Up to £1025,000
£11 – £2220,000
£23 – £3415,000
£35 – £4610,000
£47 and above5,000

[F43(2) In this Schedule “pensionable age” means the age of 60]

Textual Amendments

11.  In computing the amount of capital of the person concerned there shall be wholly disregarded any capital payment received from any source which is made in relation to the subject matter of the dispute in respect of which the person concerned is applying for advice and assistance.S

Regulation 17

[F44SCHEDULE 3STABLE OF FEES ALLOWABLE TO SOLICITORS

Textual Amendments

PART ISTABLE OF FEES ALLOWABLE TO SOLICITORS FOR ASSISTANCE BY WAY OF REPRESENTATION

1.  Subject to paragraph 3 of this Part, the fees allowable to a solicitor for providing assistance by way of representation shall be for criminal matters and civil matters as follows:–S

CriminalCivil

(a)the fee for attendance at, and all work prior to–

(i)any diet at which a plea to the competency or relevancy of the complaint or proceedings, or a plea in bar of trial, is tendered;

(ii)any diet at which a question within the meaning of rule 31.1 of the Act of Adjournal (Criminal Procedure Rules) 1996 is raised;

(iii)any diet at which there is tendered a plea of guilty;

(iv)any diet at which the court is considering the accused’s plea of guilty to the charges and where there has been no change of plea; F45...

(v)any diet at which the court is considering the accused’s changed plea of guilty to the charges, and where no application for criminal legal aid has been made[F46 and

£70.00–

(vi)any diet in a sheriff court which has been designated as a summary justice pilot court by the sheriff principal at which there is tendered a plea of not guilty;

£44.40]

(b)fees, as undernoted, for work other than or subsequent to that described in (a) above–

1.  The fee for–S

(i)any time up to the first half hour spent by a solicitor appearing in court or conducting another hearing;

£27.40£33.15

(ii)each quarter hour (or part thereof) subsequent to the first half hour spent in court or conducting another hearing.

£13.70£16.60

2.  The fee for–S

(i)each quarter hour (or part thereof) spent by a solicitor in carrying out work other than that prescribed in paragraphs 1 and 3 to 5 hereof, provided that any time is additional to the total time charged for under paragraph 1 above;

£10.55£12.75

(ii)for each quarter hour (or part thereof) spent by a solicitor’s clerk in carrying out work other than that prescribed in paragraphs 3 to 5 hereof.

£5.25£6.35

3.  The fee for–S

(i)each citation of a witness including execution thereof;

(ii)framing and drawing precognitions and other necessary papers, subject to paragraph 4(iii) below – per sheet (or part thereof);

(iii)instructing messengers-at-arms and sheriff officers, including examining execution and settling fee;

(iv)lengthy telephone calls (of over 4 and up to 10 minutes duration); and

(v)letters, including instructions to counsel, subject to paragraph 4(ii) below – per page (or part thereof).

£6.00£7.25

4.  The fee for–S

(i)attendance at court offices for performance of formal work including each necessary lodging in or uplifting from court or each necessary enquiry for documents due to be lodged;

(ii)short letters of a formal nature, intimations and letters confirming telephone calls;

(iii)framing formal papers, including inventories and title pages – per sheet (or part thereof);

(iv)revising papers drawn by counsel or where revisal ordered by court – per 5 sheets (or part thereof); and

(v)short telephone calls (of up to 4 minutes duration).

£2.40£2.90

5.  Where a document is copied and it is necessary to take a copy of more than 20 sheets (whether 20 of 1 sheet, 5 of 4 sheets or whatever), a fee of 8 pence shall be paid for each sheet copied.S

Textual Amendments

InterpretationS

2.  In this table–

  • a “sheet” shall consist of 250 words or numbers;

  • a “page” shall consist of 125 words or numbers.

Petition by debtor for sequestrationS

3.  The fees allowable to a solicitor for providing assistance by way of representation in relation to a petition by a debtor for the sequestration of his estate under section 5(2)(a) of the Bankruptcy (Scotland) Act 1985 shall be–

(a)£33.15 for any time spent by a solicitor appearing in court in connection with the petition; and

(b)£54.45 for all other work in connection with the petition.

PART IISTABLE OF FEES ALLOWED TO SOLICITORS FOR ADVICE AND ASSISTANCE OTHER THAN ASSISTANCE BY WAY OF REPRESENTATION

1.  Subject to paragraph 2 of this Part, the fees allowable to a solicitor shall be calculated for criminal matters and for civil matters and for children’s matters arising out of Part II of the Children (Scotland) Act 1995 as follows:–S

CriminalCivilChildren
A.Time occupied in carrying out work for the client other than work described in paragraphs B to E below.

(i)Solicitor – per quarter hour (or part thereof)

£10.55£12.75£12.75

(ii)Solicitor’s clerk – per quarter hour (or part thereof)

£5.25£6.35£6.35
B.For short letters of a formal nature, short telephone calls (of up to 4 minutes duration), framing formal documents such as inventories and engrossing formal documents for signature – per sheet (or part thereof)£2.40£2.90£2.90
C.For letters other than B above – per page (or part thereof), framing non-formal documents other than precognitions – per sheet of 250 words (or part thereof) and lengthy telephone calls (of over 4 and up to 10 minutes duration)£6.00£7.25£7.25
D.For taking and drawing precognitions – for the first sheet of 250 words or less£21.05£25.50£25.50
for each subsequent sheet of 250 words£21.05£25.50£25.50
for each subsequent sheet of less than 250 words£10.55£12.75£12.75
E.Where a document is copied and it is necessary to take a copy of more than 20 sheets (whether 20 of 1 sheet, 5 of 4 sheets or whatever), a fee of 8 pence shall be paid for each sheet copies.

InterpretationS

2.—[F47(1) Subject to sub paragraph (2),] In this table–

  • a “sheet” shall consist of 250 words or numbers;

  • a “page” shall consist of 125 words or numbers.

[F48(2) No fee shall be allowable under sub paragraph (1) in respect of advice and assistance given in relation to civil matters.]

Textual Amendments

Petition by debtor for sequestrationS

3.—[F49(1)  Subject to sub paragraph (2),] The fees allowable to a solicitor for providing assistance by way of representation in relation to a petition by a debtor for the sequestration of his estate under section 5(2)(a) of the Bankruptcy (Scotland) Act 1985 shall be–

(a)£33.15 for any time spent by a solicitor appearing in court in connection with the petition; and

(b)£54.45 for all other work in connection with the petition.]

[F50(2) No fee shall be allowable under sub paragraph (1) in respect of advice and assistance given in relation to civil matters].

Textual Amendments

Explanatory Note

(This note is not part of the Regulations)

These Regulations consolidate with amendments and revoke the Advice and Assistance (Scotland) Regulations 1987 and the Regulations amending those Regulations.

The main amendments are as follows:–

(a)  the previous reference to “parent or guardian" in regulation 6(2) has been substituted in consequence of the Children (Scotland) Act 1995 to allow an application for advice and assistance to be made on behalf of a child by any person having parental responsibilities in relation to the child;S

(b)  the prior right to payment of fees and outlays from property preserved does not apply to money paid by way of an income-based jobseeker’s allowance, a contribution-based jobseeker’s allowance or incapacity benefit (regulation 16);S

(c)  any back to work bonus treated as payable by way of a jobseeker’s allowance is excluded from the computation of capital and income (paragraph 5(b) of Schedule 2); andS

(d)  any payment made under the Earnings Top-up Scheme is excluded from the computation of income (paragraph 7(b) of Schedule 2).S

Yn ôl i’r brig

Options/Help

Print Options

Close

Mae deddfwriaeth ar gael mewn fersiynau gwahanol:

Y Diweddaraf sydd Ar Gael (diwygiedig):Y fersiwn ddiweddaraf sydd ar gael o’r ddeddfwriaeth yn cynnwys newidiadau a wnaed gan ddeddfwriaeth ddilynol ac wedi eu gweithredu gan ein tîm golygyddol. Gellir gweld y newidiadau nad ydym wedi eu gweithredu i’r testun eto yn yr ardal ‘Newidiadau i Ddeddfwriaeth’.

Gwreiddiol (Fel y’i Deddfwyd neu y’i Gwnaed): Mae'r wreiddiol fersiwn y ddeddfwriaeth fel ag yr oedd pan gafodd ei deddfu neu eu gwneud. Ni wnaed unrhyw newidiadau i’r testun.

Close

Gweler y wybodaeth ychwanegol ochr yn ochr â’r cynnwys

Rhychwant ddaearyddol: Indicates the geographical area that this provision applies to. For further information see ‘Frequently Asked Questions’.

Dangos Llinell Amser Newidiadau: See how this legislation has or could change over time. Turning this feature on will show extra navigation options to go to these specific points in time. Return to the latest available version by using the controls above in the What Version box.

Close

Dewisiadau Agor

Dewisiadau gwahanol i agor deddfwriaeth er mwyn gweld rhagor o gynnwys ar y sgrin ar yr un pryd

Close

Rhagor o Adnoddau

Gallwch wneud defnydd o ddogfennau atodol hanfodol a gwybodaeth ar gyfer yr eitem ddeddfwriaeth o’r tab hwn. Yn ddibynnol ar yr eitem ddeddfwriaeth sydd i’w gweld, gallai hyn gynnwys:

  • y PDF print gwreiddiol y fel deddfwyd fersiwn a ddefnyddiwyd am y copi print
  • rhestr o newidiadau a wnaed gan a/neu yn effeithio ar yr eitem hon o ddeddfwriaeth
  • manylion rhoi grym a newid cyffredinol
  • pob fformat o’r holl ddogfennau cysylltiedig
  • slipiau cywiro
  • dolenni i ddeddfwriaeth gysylltiedig ac adnoddau gwybodaeth eraill
Close

Llinell Amser Newidiadau

This timeline shows the different points in time where a change occurred. The dates will coincide with the earliest date on which the change (e.g an insertion, a repeal or a substitution) that was applied came into force. The first date in the timeline will usually be the earliest date when the provision came into force. In some cases the first date is 01/02/1991 (or for Northern Ireland legislation 01/01/2006). This date is our basedate. No versions before this date are available. For further information see the Editorial Practice Guide and Glossary under Help.