# The Advice and Assistance (Scotland) (Consolidation and Amendment) Regulations 1996, Regulation 16: Payment of fees and outlays from property recovered or preserved

Extent: S

(1) In this regulation, unless the context otherwise requires, any reference to a numbered section is to a section bearing that number in the 1992 Act.
(2) The right to prior payment of fees or outlays out of any property recovered or preserved which is created by section 12(3)(c) of the Act shall not apply–
(a) to any money paid–
(i) under a decree following on an action for aliment within the meaning of the Family Law (Scotland) Act 1985 ;
(ii) under an order for the payment of a periodical allowance under section 5 of the Divorce (Scotland) Act 1976 , or for the making of a periodical allowance under section 8 of the Family Law (Scotland) Act 1985;
(iii) under any order for the periodical payment of sums for the maintenance of any person which, by virtue of the Maintenance Orders Act 1950 , the Maintenance Orders (Reciprocal Enforcement) Act 1972 or the Civil Jurisdiction and Judgments Act 1982 , may be enforced in Scotland;
(iv) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
(v) by way of income support, family credit or disability working allowance under section 124, 128 or 129 of the 1992 Act , an income-related employment and support allowance or an income-based jobseekers allowance or a back to work bonus (payable under the Jobseekers Act 1995);
(vi) by way of aliment or periodical allowance or periodical payment of sums by virtue of any settlement arrived at to prevent or bring to an end proceedings in which such a decree or order as is mentioned in sub-paragraphs (i) to (iii) above may be granted;
(vii) by way of any Welfare Fund payment;
(viii) by way of any housing benefit under section 130 ;
(ix) by way of child support maintenance under the Child Support Act 1991 ;
(x) by way of any council tax benefit under section 131;
(xi) by way of universal credit under Part 1 of the Welfare Reform Act 2012.
(xii) by way of any payment made under the Windrush Compensation Scheme;
(xiii) by way of any Windrush connected payment;
(xiv) by way of any Scottish child payment;
(xv) by way of 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;
(xvi) by way of any payment made under the Scottish Infected Blood Support Scheme;
(xvii) by way of any additional payment made under the 2022 Act or the 2023 Act, at any time since the coming into force of those Acts;
(xviii) by way of carer’s allowance supplement under section 81 of the Social Security (Scotland) Act 2018;
(xix) by way of an allowance known as a care experienced students bursary paid under regulation 3(1) of the Student Support (Scotland) Regulations 2022.
(xx) by way of any human trafficking or exploitation victim payment,
(xxi) by way of any miscarriage of justice payment,
(xxii) by way of any Grenfell Tower payment,
(xxiii) by way of any payment made under the Infected Blood Compensation Scheme.
(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
(c) to statutory sickness benefit under sections 151 to 163 , incapacity benefit under section 30A(1) , retirement pension under sections 43 to 55 , statutory maternity pay under section 164 , benefits for widows and widowers under sections 36 to 42 , a child’s special allowance under section 56, attendance allowance under section 64, carer’s allowance under section 70 , ... disability living allowance under section 71, guardians allowance under section 77, industrial death benefit under paragraphs 14 to 21 of Schedule 7 to the 1992 Act , contributory employment and support allowance , ... personal independence payment under Part 4 of the Welfare Reform Act 2012 or a contribution- based jobseeker’s allowance within the meaning of section 1(4) of the Jobseekers Act 1995...;
(ca) to armed forces independence payment under the Armed Forces and Reserve Forces (Compensation Scheme) Order 2011;
(cb) to child disability payment given in accordance with the Disability Assistance for Children and Young People (Scotland) Regulations 2021 or short-term assistance given in accordance with Part 1 of the schedule (short-term assistance) of those Regulations,
(cc) to adult disability payment given in accordance with the Disability Assistance for Working Age People (Scotland) Regulations 2022 or short-term assistance given in accordance with Part 1 of schedule 2 (short-term assistance) of those Regulations,
(cd) to carer support ... given in accordance with the Carer’s Assistance (Carer Support Payment) (Scotland) Regulations 2023,
(ce) to pension age disability payment given in accordance with the Disability Assistance for Older People (Scotland) Regulations 2024 or short-term assistance given in accordance with Part 1 of the schedule (short-term assistance) of those Regulations,
(cf) to Scottish adult disability living allowance given in accordance with the Disability Assistance (Scottish Adult Disability Living Allowance) Regulations 2024, or short-term assistance given in accordance with Part 1 of schedule 1 (short-term assistance) of those Regulations,
(cg) to a care leaver payment;
(d) to child benefit paid under section 141;
(e) to allowances and benefits for industrial injuries paid under sections 94 to 111;
(f) to one-half of any redundancy payment within the meaning of Part XI of the Employment Rights Act 1996 recovered or preserved for the client;
(g) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
(h) to any ... household furniture or tools of trade recovered or preserved for the client as a result of advice and assistance given to him by the solicitor ;
(i) to 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;
(j) to any payment made by the Secretary of State under the Earnings Top-up Scheme... ;
(k) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
(l) to any payment of money in accordance with an order made by the Social Security Commissioners or ... under any settlement arrived at to prevent or bring to an end proceedings in which such an order may be made;
(m) to any payment of money in accordance with an order made by the Upper Tribunal in relation to proceedings described in regulation 5A(d) of the Advice and Assistance (Assistance by Way of Representation) (Scotland) Regulations 2003 or under any settlement arrived at to prevent or bring to an end proceedings in which such an order may be made;
(n) to 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.
(3) The Board may authorise that the requirement created by section 12(3)(c) of the Act that, before recourse to the Fund, fees or outlays shall be paid to the solicitor out of any property which is recovered or preserved for the client shall not apply in relation to the whole or any part of any such property in any case where on application by the solicitor the Board are satisfied that–
(a) payment out of the property to which the requirement would otherwise apply would cause grave hardship or distress to the client; or
(b) (i) the solicitor has taken all reasonable steps to obtain payment out of the property to which the requirement would otherwise apply; and
(ii) payment to the solicitor out of that property could only be effected with unreasonable difficulty or after unreasonable delay.

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Source: https://www.legislation.gov.uk/uksi/1996/2447/regulation/16 (the official version)
Page: https://openlegislation.uk/advice-and-assistance-scotland-consolidation-and-amendment-regulations-1996/regulation-16
Contains public sector information licensed under the Open Government Licence v3.0. Source: legislation.gov.uk, The National Archives.