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

  • [F1“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;

[F2(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.

[F3(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

[F4(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 [F5or 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 [F6that 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 M1;

[F7(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 [F8(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 [F9(2)] of paragraph [F102(1)(b)] of Part I of Schedule 2 to the Income Support (General) Regulations 1987 [F11as at the date when the application for advice and assistance is made];]

Textual Amendments

Marginal Citations

M1This 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

[F12(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

[F13SCHEDULE 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; F14...

(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[F15 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.—[F16(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.

[F17(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.—[F18(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.]

[F19(2) No fee shall be allowable under sub paragraph (1) in respect of advice and assistance given in relation to civil matters].

Textual Amendments