The Civil Legal Aid (Scotland) Regulations 2002

• (4) Where a person resident outside the United Kingdom applies for legal aid for the purposes of an appeal as mentioned in paragraph (3) and has not applied for legal aid in relation to an earlier stage of the proceedings, the application for legal aid for the purposes of such appeal shall be accompanied, in addition to the documents specified in paragraph (3)(c)(ii), by a certificate of the Scottish Ministers that the application relates to a Convention application.

Applications under the European Judgments Convention

46

• (1) This regulation applies where–

• (a) application is made for legal aid for the purpose of applying to the Court of Session in accordance with section 4 of the Civil Jurisdiction and Judgments Act 1982 for the registration for enforcement of a judgment other than a maintenance order; and

• (b) application for legal aid is made by or on behalf of a person who wishes to enforce a maintenance order in Scotland–

• (i) for the purpose of an application to the sheriff court in accordance with section 5 of the Civil Jurisdiction and Judgments Act 1982; or

• (ii) for the purpose of any proceedings following on such an application;

• (c) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

• (d) application for legal aid is made in relation to proceedings in respect of which the sheriff court has jurisdiction, or an appeal in respect of which the Inner House of the Court of Session has jurisdiction, by, or on behalf of, a person who has made an application to the Scottish Ministers under Chapter III of the Hague Convention and the person—

• (i) is entitled to free legal assistance by virtue of Article 15(1) of that Convention; or

• (ii) has, in a State bound by the Hague Convention ..., benefitted from free legal assistance and is entitled to free legal assistance by virtue of Article 17(b) of that Convention.

• (2) In the case of an application to which this regulation applies–

• (a) section 15 of the Act shall be modified so as to provide that a person making such application shall be eligible for legal aid without regard to that person’s income or capital;

• (b) section 17 of the Act shall be modified so as to provide that a person making such application shall not require to pay any contribution to the Fund in respect of income or capital nor shall that person require, where there is a net liability to the Fund on that person’s account, to pay the amount of that liability to the Board out of any property which is recovered or preserved for that person;

• (c) regulation 5 above shall be modified so as to provide that the application for legal aid–

• (i) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

• (ii) requires to be accompanied by a statement ... explaining the nature of the case and the interest of the applicant therein; and

• (d) regulation 7(2) above shall be modified so as to provide that paragraph (1) of that regulation shall not apply in the case of an application for legal aid to which this regulation applies.

• (3) In the case of an application made in the circumstances referred to in paragraph (1)(c)(i) or (d)(i), the Act is further modified in accordance with regulation 45(2)(a).

• (4) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

• (5) In paragraph (1)(d), “the Hague Convention” means the Convention on the International Recovery of Child Support and other forms of Family Maintenance done at The Hague on 23rd November 2007.

Social Security Commissioners and Child Support Commissioners

47

Legal aid shall only be made available in relation to proceedings in an appeal to the Social Security Commissioners ... where it appears to the Board that, notwithstanding any decision that might be made by the Commissioners having regard to the circumstances of the case, any onward right of appeal would lie to the Court of Session.

SCHEDULE 1 — REGULATIONS REVOKED

Title	Reference
The Civil Legal Aid (Scotland) Regulations 1996	S.I. 1996/2444
The Civil Legal Aid (Scotland) Amendment Regulations 1997	S.I. 1997/727
The Civil Legal Aid (Scotland) Amendment Regulations 1998	S.I. 1998/725
The Civil Legal Aid (Scotland) Amendment Regulations 2000	S.S.I. 2000/182
The Civil Legal Aid (Scotland) Amendment Regulations 2001	S.S.I. 2001/82
The Civil Legal Aid (Scotland) Amendment Regulations 2002	S.S.I. 2002/88
The Civil Legal Aid (Scotland) Amendment (No. 2) Regulations 2002	S.S.I. 2002/254

SCHEDULE 2 — RULES FOR COMPUTING DISPOSABLE INCOME

1

The income of the person concerned from any source shall be taken to be the income which that person may reasonably expect to receive (in cash or in kind) during the period of computation, that income in the absence of other means of ascertaining it being taken to be the income received during the preceding year.

2

The income in respect of any emolument, benefit or privilege receivable otherwise than in cash shall be estimated at such a sum as in all the circumstances is just and equitable.

3

• (1) The income from a trade, business or gainful occupation other than an employment at a wage or salary shall be deemed to be whichever of the following the Board considers more appropriate and practicable:–

• (a) the profits which have accrued or will accrue to the person concerned in respect of the period of computation; or

• (b) the drawings of the person concerned.

• (2) In calculating the profits and drawings referred to in paragraph (1) above–

• (a) the Board may have regard to the profits of the last accounting period of such trade, business or gainful occupation for which accounts have been prepared; and

• (b) there shall be deducted all sums necessarily expended to earn those profits, but no deduction shall be made in respect of the living expenses of the person concerned or any member of that person’s family or household, except in so far as that person is wholly or mainly employed in that trade or business and such living expenses form part of that person’s remuneration.

4

• (1) In computing the disposable income of the person concerned there shall be deducted the total amount of tax which it is estimated would be payable by the person concerned if that person’s income, as computed in accordance with the foregoing rules of this Schedule (but without taking into account the operation of regulation 11(1) of these Regulations), were that person’s income for a fiscal year and that person’s liability for tax in that year were to be ascertained by reference to that income and not by reference to that person’s income in any other year or period.

• (2) For the purposes of this rule the tax shall be estimated at the rate provided by and after making all appropriate allowances, deductions or reliefs in accordance with the provisions of the Income Tax Acts in force for the fiscal year current at the date of the application.

5

In computing the disposable income of the person concerned, there shall be disregarded–

• (a) income support paid under section 124 of the 1992 Act ;

• (b) an income-based jobseeker’s allowance (payable under the Jobseekers Act 1995 );

• (c) a back to work bonus (payable under the Jobseekers Act 1995);

• (d) any payment made under the Community Care (Direct Payments) Act 1996 or as a direct payment as defined in section 4(2) of the Social Care (Self-directed Support) (Scotland) Act 2013 ;

• (e) state pension credit (payable under the State Pension Credit Act 2002);

• (f) an income-related employment and support allowance;

• (g) universal credit paid under Part 1 of the Welfare Reform Act 2012;

• (h) any means-tested additional payment made under section 1 or 4 of the 2022 Act;

• (i) any means-tested additional payment made under section 1 of the 2023 Act, at any time since the coming into force of that Act.

6

There shall be disregarded £4 a week of the income taken into account in so far as it consists of interest or dividends payable on a loan or investment where that loan or investment forms part of the disposable capital of the person concerned.

7

There shall be disregarded–

• (a) attendance allowance paid under section 64 of the 1992 Act ;

• (ab) carer’s allowance paid under section 70 of the 1992 Act,

• (b) disability living allowance paid under section 71 of the 1992 Act ;

• (ba) Scottish adult disability living assistance given in accordance with the 2024 Regulations;

• (bb) short-term assistance given in accordance with Part 1 of schedule 1 (short-term assistance) of the 2024 Regulations;

• (c) constant attendance allowance paid as an increase to a disablement pension under section 104 of the 1992 Act;

• (d) any sums paid to a person as holder of the Victoria Cross or the George Cross;

• (e) any Welfare Fund payment;

• (f) ... personal independence payment paid under section 79 of the Welfare Reform Act 2012;

• (g) armed forces independence payment under the Armed Forces and Reserve Forces (Compensation Scheme) Order 2011;

• (h) any Scottish child payment;

• (i) child disability payment given in accordance with the Disability Assistance for Children and Young People (Scotland) Regulations 2021,

• (j) short-term assistance given in accordance with Part 1 of the schedule (short-term assistance) of those Regulations,

• (k) adult disability payment given in accordance with the Disability Assistance for Working Age People (Scotland) Regulations 2022 (“the 2022 Regulations”),

• (l) short-term assistance given in accordance with Part 1 of schedule 2 (short-term assistance) of the 2022 Regulations,

• (m) any disability additional payment made under section 5 of the 2022 Act,

• (n) any disability additional payment made under section 5 of the 2023 Act, at any time since the coming into force of that Act,

• (o) any carer support payment,

• (p) any carer’s allowance supplement paid under section 81 of the Social Security (Scotland) Act 2018;

• (q) any payment made by way of an allowance known as a care experienced students bursary paid under regulation 3(1) of the Student Support (Scotland) Regulations 2022;

• (p) pension age disability payment given in accordance with the Disability Assistance for Older People (Scotland) Regulations 2024 (“the 2024 Regulations”),

• (q) short-term assistance given in accordance with Part 1 of the schedule of the 2024 Regulations

• (r) any human trafficking or exploitation victim payment,

• (s) any miscarriage of justice payment,

• (t) any Grenfell Tower payment,

• (u) any payment made under the Infected Blood Compensation Scheme.

8

When the income of the person concerned consists, wholly or in part, of a wage or salary from employment there shall be deducted–

• (a) the reasonable expenses of travelling to and from that person’s place of employment;

• (b) the amount of any payments reasonably made for membership of a trade union or professional organisation;

• (c) when it would be reasonable to do so, an amount to provide for the care of any dependent child living with the person concerned during the time that person is absent from the home by reason of employment; and

• (d) the amount of any contribution paid, whether under a legal obligation or not, to an occupational pension scheme within the meaning of the Social Security Pensions Act 1975 or to a personal pension scheme within the meaning of section 1 of the Pension Schemes Act 1993 .

9

There shall be a deduction in respect of contributions payable by the person concerned (whether by deduction or otherwise) under the 1992 Act of the amount estimated to be so payable in the 12 months following the application.

10

There shall be a deduction in respect of the amounts payable or estimated to be payable in the 12 months following the application by the person concerned in respect of–

• (a) the council tax and the rate as defined in section 99(1) and (2)(a) of the Local Government Finance Act 1992 ; and

• (b) charges payable under an order made by virtue of section 37 of the Water Industry (Scotland) Act 1994 .

11

• (1) There shall be a deduction, in respect of rent of the main or only dwelling in the case of a householder, of the amount of the net rent paid or such part thereof as is reasonable in the circumstances:

12

If the person concerned is not a householder, there shall be a deduction in respect of the cost of that person’s living accommodation of such amount as is reasonable in the circumstances.

13

• (1) There shall be a deduction in respect of the maintenance of the spouse of the person concerned, if the spouses are living together and in respect of the maintenance of any person wholly or substantially maintained by the person concerned, being a member of his or her household, (“a dependent person”) at the following rates:–

• (a) in the case of a spouse, at a rate equivalent to the difference, as at the date when the computation period began, 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 1 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 1 of Schedule 2 to those Regulations);

• (b) in the case of a dependent person aged under 19, at a rate equivalent to the amount specified in column (2) of paragraph 2(1) of Part 1 of Schedule 2 to the Income Support (General) Regulations 1987 appropriate to that person as at the date when the computation period began;

• (c) in the case of a dependent person aged 19 or over at a rate equivalent to the amount specified in column (2) of paragraph 2(1)(b) of Part 1 of Schedule 2 to the Income Support (General) Regulations 1987 as at the date when the computation period began:

14

If the person concerned is making and, throughout such period as the Board may consider adequate, has regularly made bona fide payments for the maintenance of a spouse who is living apart, of a former spouse, of a child or of a relative who is not (in any such cases) a member of the household of the person concerned, there shall be a deduction at the rate of such payments or at such rate, not exceeding the rate of such payments, as in all the circumstances is reasonable.

15

Where the person concerned must provide for any other matter the Board may make an allowance of such amount as it considers to be reasonable in the circumstances of the case.

16

In computing the income from any source there shall be disregarded such amount, if any, as the Board considers to be reasonable having regard to the nature of the income or to any other circumstances of the case.

SCHEDULE 3 — RULES FOR COMPUTING DISPOSABLE CAPITAL

1

Subject to the provisions of these Regulations, there shall be included in the computation of the amount of the capital of the person concerned the amount or value of every resource of a capital nature ascertained as on the date of the application for legal aid:

2

So far as any resource does not consist of money, the amount or value thereof shall be taken to be the amount which that resource would realise if sold in the open market or, if there is only a restricted market for that resource, the amount which it would realise in that market, or shall be taken to be the amount or value thereof assessed in such manner as appears to the Board to be just and equitable.

3

Where money is due to the person concerned, whether immediately payable or otherwise and whether the payment thereof is secured or not, the value shall be taken to be the present value thereof.

4

If the person concerned stands in relation to a company in a position analogous to that of a sole owner or partner in the business of that company, the Board may, in lieu of ascertaining the value of stocks, shares, bonds or debentures in that company, treat that person as if he or she were such sole owner or partner and compute the amount of his or her capital in respect of that resource in accordance with the succeeding rule.

5

Where the person concerned is or is to be treated as the sole owner of or a partner in any business, the value of such business or that person’s share therein to that person shall be taken to be either–

• (a) such sum, or that person’s share of such sum, as the case may be, as could be withdrawn from the assets of such business without substantially impairing the profits of such business or the normal development thereof; or

• (b) such sum as that person could borrow on the security of his or her interest in such business without substantially injuring the commercial credit of that business;

whichever is the greater.

6

The value of any interest, whether vested or contingent, of the person concerned in the fee of any heritable or moveable property forming the whole or part of any trust or other estate, shall be computed by the Board in such manner as appears to it to be both equitable and practicable.

7

In computing the amount of capital of the person concerned where that person is in receipt of income support under section 124 of the 1992 Act or an income-based jobseeker’s allowance (payable under the Jobseekers Act 1995) or an income-related employment and support allowance or universal credit under Part 1 of the Welfare Reform Act 2012, there shall be disregarded any amount which exceeds the sum for the time being specified as the disposable capital limit under section 17(2)(b) of the Act.

8

In computing the amount of capital of the person concerned, there shall be wholly disregarded–

• (a) any Welfare Fund payment;

• (b) a back to work bonus (payable under the Jobseekers Act 1995);

• (c) any payment made under the Community Care (Direct Payments) Act 1996 or as a direct payment as defined in section 4(2) of the Social Care (Self-directed Support) (Scotland) Act 2013;

• (d) any payment made under the Windrush Compensation Scheme;

• (e) any Windrush connected payment;

• (f) any Scottish child payment;

• (g) any payment made under Part 4 of the 2021 Act (financial redress for historical child abuse), or any relevant payment made or due to be made prior to the date of commencement of the redress scheme;

• (h) any payment made under the Scottish Infected Blood Support Scheme;

• (i) any additional payment made under either the 2022 Act or the 2023 Act, at any time since the coming into force of those Acts;

• (j) any temporary additional amount to the social fund winter fuel payment paid by virtue of the Social Fund Winter Fuel Payment (Temporary Increase) Regulations 2022 or the Social Fund Winter Fuel Payment (Temporary Increase) Regulations 2023;

• (k) any carer support payment;

• (l) any carer’s allowance paid under section 70 of the 1992 Act or carer’s allowance supplement paid under section 81 of the Social Security (Scotland) Act 2018;

• (m) any payment made by way of an allowance known as a care experienced students bursary paid under regulation 3(1) of the Student Support (Scotland) Regulations 2022;

• (n) any human trafficking or exploitation victim payment,

• (o) any miscarriage of justice payment,

• (p) any Grenfell Tower payment,

• (q) any payment made under the Infected Blood Compensation Scheme.

9

Save in exceptional circumstances, nothing shall be included in the amount of capital of the person concerned in respect of–

• (a) the household furniture and effects of the dwelling house occupied by that person;

• (b) articles of personal clothing; and

• (c) the personal tools and equipment of that person’s trade, not being part of the plant or equipment of a business to which the provisions of rule 5 of this Schedule apply.

10

• (1) In computing the amount of capital of the person concerned, the value of any interest in the main or only dwelling in which that person resides shall be wholly disregarded.

• (2) Where the person concerned resides in more than one dwelling in which that person has an interest, the Board shall decide which is the main dwelling and shall take into account in respect of the value to that person of any interest in a dwelling which is not the main dwelling any sum which might be obtained by borrowing money on the security thereof.

11

Where the person concerned has received or is entitled to receive from a body of which that person is a member a sum of money by way of financial assistance towards the cost of the proceedings in respect of which legal aid is applied for, such sum shall be disregarded.

12

The value of any life assurance or endowment policy shall be taken to be the amount which the person concerned could readily borrow on the security thereof.

13

Where under any statute, bond, agreement, indemnity, guarantee or other instrument the person concerned is under a contingent liability to pay any sum or is liable to pay a sum not yet ascertained, an allowance shall be made of such an amount as is reasonably likely to become payable within the 12 months immediately following the date of application for legal aid.

14

An allowance may be made in respect of any debt owed by the person concerned (other than a debt secured on the dwelling or dwellings in which that person resides) to the extent to which the Board considers reasonable, provided that the person concerned produces evidence to its satisfaction that the debt or part of the debt will be discharged within the twelve months immediately following the date of the application.

15

• (1) Where the person concerned is of pensionable age and his or her annual disposable income (excluding any net income derived from capital) is less than the figure prescribed in section 17(2)(a) of the Act there shall be disregarded the amount of capital as specified in the following table:–

Annual disposable income (excluding net income derived from capital)	Amount of capital disregarded
Up to £350	£35,000
£351–£800	£30,000
£801–£1,200	£25,000
£1,201–£1,600	£20,000
£1,601–£2,050	£15,000
£2,051–£2,450	£10,000
£2,451 and above	£ 5,000

• (2) In this Schedule “pensionable age” means the age of 60.

16

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 application for legal aid has been made.

17

In computing the amount of capital there shall be disregarded such an amount of capital, if any, as the Board in the circumstances of the case may in its discretion decide.

Signed

R J SIMPSON — Authorised to sign by the Scottish Ministers — 6th November 2002

Explanatory note

(This note is not part of the Regulations)

athe provisions relating to the availability of civil legal aid in matters of special urgency are amended so that–

iany contribution which may be payable by a person for whom special urgency work is done is paid to the Scottish Legal Aid Board (“the Board”); and

iiwhere an application for civil legal aid is refused after a solicitor has undertaken certain work as a matter of special urgency, that solicitor may still be paid for that work, provided certain conditions are met (regulation 18);

bproceedings before the Social Security Commissioners and the Child Support Commissioners are added to the list of distinct proceedings for the purposes of legal aid (regulation 4(k)); payments recovered or preserved in the course of such proceedings are discounted when calculating the amount of any net liability of the Legal Aid Fund on account of any party (regulation 33(a)(xi)); and civil legal aid will only be made available for such proceedings where it appears to the Board that any onward right of appeal would lie to the Court of Session (regulation 47);

cthe amount of money, or the value of any property, recovered or preserved in certain matrimonial proceedings which is disregarded when calculating the amount of any net liability of the Legal Aid Fund on account of any party is increased from £2,500 to £4,200 (regulation 33(b));

dwhere a person submits an application for civil legal aid and then fails to provide the Board with information which it requests to allow it to reach a decision on that application, the Board may treat the application as having been abandoned (regulation 9(2));

eThe Board may allow an extension of the 15 day period for submission of an application for review of its decision to refuse civil legal aid (regulation 20(1)(b)) and if such an application is not submitted timeously, the Board may treat that application as having been abandoned (regulation 19(5));

fsolicitors and counsel will have a duty to inform the Board of any change to an assisted person’s personal circumstances, where they consider that that assisted person has not done so (regulation 23(2));

gwhere the Board has suspended the availability of civil legal aid for a period of 90 days, it may continue that suspension for one additional period of 90 days (regulation 29(2)(b)); and

hthe Board may cease to make civil legal aid available where it is satisfied that there has been an error is assessing the merits of the application (regulation 31(b)).

Footnotes

2

• (1) In these Regulations–

• “the Act” means the Legal Aid (Scotland) Act 1986;

• “the 1992 Act” means the Social Security Contributions and Benefits Act 1992 ;

• “the 1995 Act” means the Children (Scotland) Act 1995 ;

• “the 2000 Act” means the Adults with Incapacity (Scotland) Act 2000;

• “the 2021 Act” means the Redress for Survivors (Historical Child Abuse in Care) (Scotland) Act 2021;

• “the 2022 Act” means the Social Security (Additional Payments) Act 2022,

• “the 2023 Act” means the Social Security (Additional Payments) Act 2023;

• “the 2025 Regulations” means the Disability Assistance (Scottish Adult Disability Living Allowance) Regulations 2025;

• “additional payment” means a payment within the meaning given in section 9(1) (interpretation) of the 2022 Act or that given in section 10(1) (interpretation) of the 2023 Act;

• “assisted person” means a person in receipt of legal aid in the proceedings in question;

• “carer support payment” means carer’s assistance given in accordance with the Carer’s Assistance (Carer Support Payment) (Scotland) Regulations 2023,

• “child” means a person under the age of 16 years , except in regulation 11A;

• “counsel” includes a solicitor-advocate, except in regulations 21(1)(c) and 44 below;

• “Employment Appeal Tribunal” means the Employment Appeal Tribunal established under section 87 of the Employment Protection Act 1975 ;

• “Fund” means the Scottish Legal Aid Fund;

• “Grenfell Tower payment” means any payment made to a person by way of compensation, damages or legal expenses in connection with the Grenfell Tower fire of 14 June 2017, including under any settlement arrived at to prevent or bring legal proceedings to an end,

• “human trafficking or exploitation victim payment” means any payment by way of support or assistance provided under section 9 of the Human Trafficking and Exploitation (Scotland) Act 2015 or under regulations made under section 10 of that Act, or any payment made by way of support provided under a Modern Slavery Victim Care Contract,

• “income” includes benefits and privileges, and the income of the person concerned includes any sum payable for the purpose of the maintenance of a child including any sum payable to that person under the order of a court or under any agreement for that purpose;

• “income-related employment and support allowance” means an income-related allowance under Part 1 of the Welfare Reform Act 2007 (employment and support allowance);

• “Infected Blood Compensation Scheme” means the scheme made by the Secretary of State or the Minister for the Cabinet Office in exercise of powers conferred by section 49 of the Victims and Prisoners Act 2024,

• “interest in land” has the same meaning as in section 28(1) of the Land Registration (Scotland) Act 1979 ;

• “junior counsel” includes a junior solicitor-advocate;

• “legal aid” means “civil legal aid” within the meaning of section 13(2) of the Act ;

• “legal representative” means a person having parental responsibilities in relation to a child, a judicial factor or a person authorised to act on an adult’s behalf under the 2000 Act or on a patient’s behalf under the Mental Health (Care and Treatment) (Scotland) Act 2003;

• “maximum contribution” means the maximum amount of a person’s contribution to the Fund in respect of any proceedings;

• “miscarriage of justice payment” means any payment made by the Secretary of State, the Scottish Ministers or the Department of Justice (Northern Ireland) for the purpose of compensating a person for a miscarriage of justice,

• “opponent”, in relation to an application for legal aid, means a party, other than the applicant, interested in the proceedings for which legal aid is sought;

• “parental responsibilities” has the meaning given in section 1(3) of the 1995 Act;

• “parental rights” has the meaning given in section 2(4) of the 1995 Act;

• “patient” has the same meaning as in section 329 of the Mental Health (Care and Treatment) (Scotland) Act 2003;

• “period of computation” means the period of 12 months next ensuing from the date of the application for legal aid, or such other period of 12 months as in the particular circumstances of any case the Board may consider to be appropriate;

• “person concerned” means the person whose disposable income, disposable capital, and maximum contribution are to be determined or redetermined or the person whose resources are to be treated as the resources of any other person, under these Regulations;

• “redress scheme” has the meaning given in section 2 of the 2021 Act;

• “relevant payment” means any payment described in section 42(2) (deduction of previous payment from redress payment) read with section 42(3) and (7) as adjusted in accordance with sections 42(5) and 43 of the 2021 Act;

• “right of audience” means, in relation to a solicitor, a right of audience in the Court of Session and the Supreme Court which a solicitor has by virtue of section 25A (rights of audience in specified courts) of the Solicitors (Scotland) Act 1980 ;

• “Scottish child payment” means any payment under Part 3 of the Scottish Child Payment Regulations 2020;

• “Scottish Infected Blood Support Scheme” means the scheme of that name made by the Scottish Ministers in exercise of powers conferred by section 28 of the Smoking, Health and Social Care (Scotland) Act 2005;

• “senior counsel” includes a senior solicitor-advocate, except in paragraph (2) below;

• “social fund winter fuel payment” means the winter fuel payment paid by virtue of the Social Fund Winter Fuel Payment Regulations 2000;

• “solicitor-advocate” means a solicitor having a right of audience, whether instructed by another solicitor or not, when and only when—that solicitor is exercising that right of audience or acting in connection with the exercise of that right; orin relation to proceedings in the Sheriff Appeal Court, that solicitor would have been exercising that right of audience, or acting in connection with the exercise of that right, had the proceedings taken place in a court to which section 25A of the Solicitors (Scotland) Act 1980 applied;

• “Welfare Fund payment” means any payment made by a local authority in exercise of the power in section 20 of the Local Government in Scotland Act 2003 and using funds provided by the Scottish Ministers from the Scottish Welfare Fund, where the payment is—a crisis payment made for the purpose of meeting an immediate short term need; ormade for the purpose of meeting a need for community care;

• “Windrush Compensation Scheme” means the scheme of that name set out in the Windrush Compensation Scheme (Expenditure) Act 2020;

• “Windrush connected payment” means a payment where—an individual has made a claim under the Windrush Compensation Scheme;a request included in that claim has been referred by the Home Office to another person; andthe payment is made to the individual by that other person as a result of that referral;

• “in writing” includes a reference to an electronic communication, as defined in the Electronic Communications Act 2000 , which has been recorded and is consequently capable of being reproduced; and

unless the context otherwise requires, any reference in these Regulations to a solicitor does not include a solicitor when acting as a solicitor-advocate.

• (2) For the purposes of these Regulations, a solicitor-advocate shall be–

• (a) a senior solicitor-advocate, where undertaking work equivalent to that which would be done by a senior counsel in a case in the Supreme Court, or where the Board has authorised the employment of senior counsel under regulation 21(1)(b) or (2) below; or

• (b) a junior solicitor-advocate, where undertaking work equivalent to that which would be done by a junior counsel, irrespective of whether or not the Board has authorised the employment of senior counsel in the case.

Provided that where it appears that the applicant has a right to assistance in the conduct of the proceedings in question, that applicant shall not, for the purpose of this regulation, be deemed to have failed to take all reasonable steps by reason only that the applicant has not taken proceedings by way of declarator or otherwise to enforce that right.

• (2) Where the Board approves an application 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 the proceedings, the Board shall require that person to sign an undertaking to pay to the Board, in addition to a contribution if any, any sum received from that body on account of the expenses of the proceedings.

Provided that any contributions received from any other person towards that payment of rent shall be taken into account as income, and the Board shall decide which is the main dwelling where the person concerned resides in more than one dwelling in which that person has an interest.

• (2) In this rule the expression “rent” means–

• (a) the feu duty or ground annual or the rent payable in respect of a year; and

• (b) a sum in respect of the yearly outgoings borne by the householder including, in particular, a reasonable allowance towards any necessary expenditure on repairs and insurance and any other annual burden, including any annual instalment (whether of interest or capital) payable in respect of a heritable security (within the meaning of section 9(8)(a) of the Conveyancing and Feudal Reform (Scotland) Act 1970 ) or a real burdenad factum praestandum.

• (3) In this rule the expression “net rent” means–

• (a) the rent less any proceeds of subletting any part of the premises in respect of which the said rent is paid or the outgoings incurred; or

• (b) where any person or persons other than the person concerned, his or her spouse or any dependent of his or hers is accommodated, otherwise than as a subtenant, in the premises for which the rent is paid, the rent less such an amount as the Board may determine to be reasonably attributable to the accommodation of such person.

Provided that the Board may reduce such rate by taking into account the income and other resources of the dependent person to such extent as appears to the Board to be just and equitable.

• (2) In ascertaining whether a person is a dependent person regard shall be had to their income and other resources.

Provided that, where it is brought to the notice of the Board that, between the date of the application and the determination there has been a substantial fluctuation in the value of a resource or there has been a substantial variation in the nature of a resource affecting the basis of computation of its value, or any resource has ceased to exist or a new resource has come into the possession of the person concerned, the Board shall compute the capital resources of that person in the light of such facts and the resources as so computed shall be taken into account in the determination.

Editorial notes