Explanatory note

These Regulations amend the Advice and Assistance (Scotland) Regulations 1996 (“the 1996 Regulations”) and consequentially revoke regulation 3 of the Civil Legal Aid (Transfer of Tribunal Functions) (No. 1) (Scotland) Regulations 2010 (“the 2010 Regulations”).

Regulation 4 inserts a new regulation 22 into the 1996 Regulations to allow payments to be recovered or withheld where the Scottish Legal Aid Board finds that a solicitor who has provided advice and assistance in relation to a non-criminal matter has not correctly applied the relevant tests for eligibility. Provision to similar effect in the context of civil matters was previously made by regulation 3 of the 2010 Regulations (and is made in relation to summary criminal matters by regulation 6 of the Criminal Legal Assistance (Fees and Information etc.) (Scotland) Regulations 2008 (S.S.I. 2008/240)). Regulation 3 of the 2010 Regulations was, however, restricted in its application to assistance by way of representation (which is a type of advice and assistance) in relation to proceedings before the First-tier Tribunal or the Upper Tribunal. As regulation 22 applies to advice and assistance in relation to all civil matters regulation 3 of the 2010 Regulations is no longer required and is therefore revoked by regulation 6. Regulations 4 and 6 apply only in relation to advice and assistance which was made available on or after 31st January 2011.

Regulation 5 amends Schedule 2 to the 1996 Regulations. That Schedule sets out how solicitors are to go about determining their clients’ disposable income and disposable capital for the purpose of assessing clients’ eligibility to be given advice and assistance. Schedule 2 to the 1996 Regulations was amended by the Criminal Legal Assistance (Fees and Information etc.) (Scotland) Regulations 2008 to require solicitors (where necessary and practicable) to obtain financial or other documentation and to take such other reasonable steps as are necessary for the purpose of ascertaining their clients’ capital and income before granting advice and assistance (including assistance by way of representation) in relation to criminal matters. Paragraphs (a) and (b) of regulation 5 extend those requirements to advice and assistance in relation of non-criminal matters. Paragraph (c) of regulation 5 makes provision to require the resources of any person who owes an obligation of aliment to a child to be taken into account when assessing the child’s financial eligibility for advice and assistance in relation to non-criminal matters. The requirement is not to apply where its application would produce an unjust or inequitable result in the circumstances. The amendments made by regulation 5 apply only to applications for advice and assistance made on or after 31st January 2011.