The Advice and Assistance (Scotland) Amendment (No.2) Regulations 1988

Made: 30th June 1988

Laid before Parliament: 11th July 1988

Coming into force: 1st August 1988

The Secretary of State, in exercise of the powers conferred on him by sections 12(3), 33(2) and (3), 36, 37(1) and 42 of the Legal Aid (Scotland) Act 1986[^f00001]and of all other powers enabling him in that behalf, hereby makes the following Regulations:

Citation and commencement

1

These Regulations may be cited as the Advice and Assistance (Scotland) Amendment (No.2) Regulations 1988 and shall come into force on 1st August 1988.

Interpretation

2

In these Regulations, “the principal Regulations” means the Advice and Assistance (Scotland) Regulations 1987[^f00002].

Amendment of references to current Social Security legislation

3

• (1) In regulation 4(a) of the principal Regulations for the words “supplementary benefit or family income supplement” there shall be substituted “income support or family credit”.

• (2) After regulation 15(1)(a)(vii) of the principal Regulations there shall be inserted the following:—

(viii) by way of any housing benefit under the Social Security Act 1986[^f00003];

Notice to the Board on acceptance of application

4

At the end of regulation 10 of the principal Regulations there shall be inserted the following:—

• 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.

Giving of advice and assistance on the same matter

5

For regulation 12(2) of the principal Regulations there shall be substituted the following paragraph:—

(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.

Payment of fees and outlays from property recovered or preserved

6

In regulation 15(1)(a)(vi) of the principal Regulations there shall be inserted after the words “periodical allowance” the words “or periodical payment of sums”.

Exclusion of posts and incidents from outlays of solicitors

7

At the end of regulation 16(1)(b) of the principal Regulations after the word “matter”, there shall be added “, provided that, without prejudice to any other claims for outlays, there shall not be allowed to a solicitor outlays representing posts and incidents”.

Provisions relative to lodging of accounts for advice and assistance

8

In regulation 17 of the principal Regulations—

• (a) in paragraph (1) the words “6 months” shall be deleted and the words “1 year” substituted; and there shall be added at the end the following:—

• Provided that, where civil legal aid has been made available to an applicant to whom in connection with the same matter advice or 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.

• (b) the following paragraph shall be inserted after paragraph (1):—

(1A) 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.

Amendments to Schedules

9

• (1) In Schedule 2 to the principal Regulations there shall be substituted in paragraph 4, for the words “26(3) and (4)”, the words “26(3) and (5)”.

• (2) For Schedule 3 to the principal Regulations (table of fees allowable to solicitors) there shall be substituted the Schedule to these Regulations.

SCHEDULE — NEW SCHEDULE 3 TO BE SUBSTITUTED IN PRINCIPAL REGULATIONS

Signed

James Douglas-Hamilton — Parliamentary Under Secretary of State, Scottish Office — 30th June 1988

Explanatory note

(This note is not part of the Regulations)

These Regulations amend the provisions of the Advice and Assistance (Scotland) Regulations 1987 (“the principal Regulations”) in the following respects.

Certain references in the principal Regulations to current Social Security legislation are amended (regulations 3 and 9(1)).

In regulation 4 the requirement upon a solicitor to notify the Board of his having begun to give advice and assistance is amended by making failure to do so within the specified time limit grounds for ineligibility for payment.

Regulation 5 makes provision for a second or subsequent solicitor to give advice or assistance to a client subject to certain preconditions.

Regulation 6 adds certain periodical payments made by virtue of any settlement relative to certain specified proceedings to the list of monies to which the right to prior payment of fees or outlays does not apply.

The fees for advice and assistance have been increased by around 6.5% to achieve parity with those paid under the Criminal Legal Aid (Scotland) (Fees) Regulations 1987 (S.I. 1987/365, as subsequently amended). As these rates incorporate an allowance for posts and incidents, regulation 7 specifically excludes posts and incidents.

These Regulations also amend the requirement on a solicitor to submit accounts to the Scottish Legal Aid Board within 6 months of the date when the giving of advice and assistance was completed by increasing the time allowed to 1 year. An exception is now incorporated which allows the Board to waive the 1 year time bar where it considers that a special reason exists for the late submission of accounts. A provision is made whereby an account for advice and assistance shall be lodged with a civil legal aid account when both are connected with the same proceedings (regulation 8).

Regulation 9(2) and the Schedule substitute a new Schedule 3 to the principal Regulations. Part I of Schedule 3 to the principal Regulations now incorporates within the assistance by way of representation block fee certain other criteria by which an accused may qualify and increases the fee by 20%. Expenditure in excess of £60 will continue to be paid in terms of regulation 11(1) of the principal Regulations. The need to import the Criminal Legal Aid (Scotland) (Fees) Regulations 1987 has been removed by setting out the detailed fees payable within the said Part I.

Footnotes

[^f00001]: 1986 c. 47

[^f00002]: S.I. 1987/382, as amended by S.I. 1987/883 and 1356, and 1988/489

[^f00003]: 1986 c. 50

[^f00004]: S.I. 1988/110