The Advice and Assistance (Scotland) Amendment Regulations 2007

Explanatory Note

(This note is not part of the Regulations)

These Regulations amend the Advice and Assistance (Scotland) Regulations 1996 (“the principal Regulations”) as regards the advice and assistance scheme in relation to civil matters and the procedure by which such applications are made. They provide as follows:–

(a) with the exception of regulation 7, they apply only in relation to applications for advice and assistance in connection with civil matters made on or after 1st May 2007. Regulation 7 applies only in relation to any case where an application for advice and assistance is made on or after 9th April 2007 (regulation 2);

(b) the Scottish Legal Aid Board (“the Board”) shall determine in accordance with guidance issued by it the subject matters of advice and assistance which shall be treated as distinct matters (regulation 5);

(c) the Board shall only be able to determine the matters which are or are not to be treated as distinct matters following consultation with the Law Society. Matters which are determined as being distinct may not be treated by the Board as no longer being distinct without the Scottish Ministers' consent (regulation 5);

(d) an approval of advice and assistance for a matter which is a distinct matter shall include all matters reasonably ancillary thereto. Such ancillary matters may comprise distinct matters or matters which are not distinct (regulation 5);

(e) where the subject matter of a case is not determined to be distinct a diagnostic interview is introduced as a stage in the application process for the solicitor to identify the subject matter in question and to provide advice as appropriate. Where an applicant seeks advice and assistance for more than one subject matter, none of which are determined to be distinct, the solicitor shall approve one grant of advice and assistance for all such matters (regulation 5);

(f) where a solicitor considers that a case, the subject matter of which is not determined to be distinct, should be treated as if it were then application may be made to the Board for the subject matter to be so treated (regulation 5);

(g) where an applicant seeks advice and assistance for more than one subject matter relating to distinct matters and to matters which are neither distinct nor reasonably ancillary to the distinct matters, then a separate record of the advice and assistance provided by way of a diagnostic interview is required to be kept by the solicitor (regulation 5);

(h) no second or further diagnostic interview is allowable during the period of three months immediately following the approval of advice and assistance for the purpose of a diagnostic interview unless exceptional circumstances exist and on cause shown in which case application may be made to the Board for consideration (regulation 6);

(i) where a diagnostic interview has taken place, a separate account for this work must be submitted to the Board within three months of the date when the giving of the advice and assistance was completed. No supplementary account for advice and assistance given in connection with diagnostic interviews is allowable (regulation 8);

(j) the minimum fee under paragraph 2 of Part II of the Table of Fees in Schedule 3 to the principal Regulations shall not be allowable in respect of advice and assistance given for civil matters (regulation 9); and

(k) a solicitor’s right to prior payment of fees and outlays out of any property recovered or preserved for a client in respect of advice and assistance shall not apply to the first £4,821 recovered or preserved by virtue of certain family proceedings (this sum is increased from £4,653) (regulation 7).