Regulation 16 Payment of fees and outlays from property recovered or preserved

Scotland

(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 M1;

(ii)

under an order for the payment of a periodical allowance under section 5 of the Divorce (Scotland) Act 1976 M2, 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 M3, the Maintenance Orders (Reciprocal Enforcement) Act 1972 M4 or the Civil Jurisdiction and Judgments Act 1982 M5, may be enforced in Scotland;

F1(iv)

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(v)

by way of income support, family credit or disability working allowance under section 124, 128 or 129 of the 1992 Act F2, an income-related employment and support allowance F3or 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 F4Welfare Fund payment;

(viii)

by way of any housing benefit under section 130 M6;

(ix)

by way of child support maintenance under the Child Support Act 1991 M7;

F5(x)

by way of any council tax benefit under section 131;

F6(xi)

by way of universal credit under Part 1 of the Welfare Reform Act 2012.

F7(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;

F8(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;

F9(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 F10or the 2023 Act, at any time since the coming into force of those Acts;

F11(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.

F12(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.

F13(b)

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(c)

to statutory sickness benefit under sections 151 to 163 M8, incapacity benefit under section 30A(1) M9, retirement pension under sections 43 to 55 M10, statutory maternity pay under section 164 M11, benefits for widows and widowers under sections 36 to 42 M12, a child’s special allowance under section 56, attendance allowance under section 64, F14carer’s allowance under section 70 M13, F15... 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 F16, contributory employment and support allowance F17, ... personal independence payment under F18Part 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 1995F19...;

F20(ca)

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

F21(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,

F22(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,

F23(cd)

to carer support F24... given in accordance with the Carer’s Assistance (Carer Support Payment) (Scotland) Regulations 2023,

F25(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,

F26(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,

F27(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 M14 recovered or preserved for the client;

F28(g)

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(h)

to any F29... 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 F30;

(i)

to any payment made under the Community Care (Direct Payments Act 1996 or F31as 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 SchemeF32... F33;

F34(k)

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

F35(l)

to any payment of money in accordance with an order made by the Social Security Commissioners or F36... under any settlement arrived at to prevent or bring to an end proceedings in which such an order may be made;

F37(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;

F38(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 F39or 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.

Annotations

Textual amendments

F1: Reg. 16(2)(a)(iv) omitted (1.4.2011) by virtue of The Advice and Assistance and Civil Legal Aid (Special Urgency and Property Recovered or Preserved) (Scotland) Regulations 2011 (S.S.I. 2011/134), regs. 1, 3(a) (with reg. 2)
F2: Words in reg. 16(2)(a)(v) inserted (27.10.2008) by The Employment and Support Allowance (Consequential Provisions) (No. 3) Regulations 2008 (S.I. 2008/1879), regs. 1(1), 35(4)(a)
F3: Words in reg. 16(2)(a)(v) substituted (1.4.1997) by virtue of The Advice and Assistance (Scotland) Amendment Regulations 1997 (S.I. 1997/726), regs. 1(1), 4(a) (with reg. 2(1))
F4: Words in reg. 16(2)(a)(vii) substituted (11.6.2013) by The Welfare Reform (Consequential Amendments) (Scotland) (No. 3) Regulations 2013 (S.S.I. 2013/142), regs. 1, 4(3)(a)
F5: Reg. 16(2)(a)(x) inserted (6.4.1998) by The Advice and Assistance (Scotland) Amendment Regulations 1998 (S.I. 1998/724), regs. 1(1), 3 (with reg. 2)
F6: Reg. 16(2)(a)(xi) inserted (29.4.2013) by The Welfare Reform (Consequential Amendments) (Scotland) (No. 2) Regulations 2013 (S.S.I. 2013/137), regs. 1, 9(3)
F7: Reg. 16(2)(a)(xii)-(xiv) inserted (5.2.2021) by The Legal Aid and Advice and Assistance (Miscellaneous Amendments) (Scotland) Regulations 2020 (S.S.I. 2020/424), regs. 1(2), 2(3)
F8: Reg. 16(2)(a)(xv) inserted (26.11.2021) by The Legal Aid and Advice and Assistance (Miscellaneous Amendment) (Scotland) (No. 2) Regulations 2021 (S.S.I. 2021/333), regs. 1, 2(3)
F9: Reg. 16(2)(a)(xvi)(xvii) inserted (23.1.2023) by The Legal Aid and Advice and Assistance (Miscellaneous Amendment) (Scotland) Regulations 2023 (S.S.I. 2023/11), regs. 1, 2(3)(a)
F10: Words in reg. 16(2)(a)(xvii) inserted (21.9.2023) by The Legal Aid and Advice and Assistance (Miscellaneous Amendment) (Scotland) (No. 3) Regulations 2023 (S.S.I. 2023/178), regs. 1, 5(4)(a)
F11: Reg. 16(2)(a)(xviii)(xix) inserted (3.10.2024) by The Legal Aid and Advice and Assistance (Miscellaneous Amendment) (Scotland) Regulations 2024 (S.S.I. 2024/178), regs. 1, 2(2)
F12: Reg. 16(2)(a)(xx)-(xxiii) inserted (12.10.2024) by The Legal Aid and Advice and Assistance (Miscellaneous Amendment) (Scotland) (No. 2) Regulations 2024 (S.S.I. 2024/216), regs. 1, 4(3)(a)
F13: Reg. 16(2)(b) omitted (1.4.2011) by virtue of The Advice and Assistance and Civil Legal Aid (Special Urgency and Property Recovered or Preserved) (Scotland) Regulations 2011 (S.S.I. 2011/134), regs. 1, 3(a) (with reg. 2)
F14: Words in reg. 16(2)(c) substituted (12.10.2024) by The Legal Aid and Advice and Assistance (Miscellaneous Amendment) (Scotland) (No. 2) Regulations 2024 (S.S.I. 2024/216), regs. 1, 4(3)(b)
F15: Words in reg. 16(2)(c) omitted (11.6.2013) by virtue of The Welfare Reform (Consequential Amendments) (Scotland) (No. 3) Regulations 2013 (S.S.I. 2013/142), regs. 1, 4(3)(b)
F16: Words in reg. 16(2)(c) inserted (27.10.2008) by The Employment and Support Allowance (Consequential Provisions) (No. 3) Regulations 2008 (S.I. 2008/1879), regs. 1(1), 35(4)(b)
F17: Words in reg. 16(2)(c) inserted (8.4.2013) by The Welfare Reform (Consequential Amendments) (Scotland) Regulations 2013 (S.S.I. 2013/65), art. 1, reg. 4
F18: Words in reg. 16(2)(c) substituted (31.10.2013) by The Legal Aid and Advice and Assistance (Photocopying Fees and Welfare Reform) (Miscellaneous Amendments) (Scotland) Regulations 2013 (S.S.I. 2013/250), regs. 1(1), 2(2) (with reg. 1(2)(a))
F19: Words in reg. 16(2)(c) omitted (1.4.1997) by virtue of The Advice and Assistance (Scotland) Amendment Regulations 1997 (S.I. 1997/726), regs. 1(1), 4(b) (with reg. 2(1))
F20: Reg. 16(2)(ca) inserted (11.6.2013) by The Welfare Reform (Consequential Amendments) (Scotland) (No. 3) Regulations 2013 (S.S.I. 2013/142), regs. 1, 4(3)(c)
F21: Reg. 16(2)(cb) inserted (26.7.2021) by The Disability Assistance for Children and Young People (Consequential Amendment and Transitional Provision) (Scotland) Regulations 2021 (S.S.I. 2021/73), regs. 1, 4(2) (with reg. 19)
F22: Reg. 16(2)(cc) inserted (21.3.2022) by The Disability Assistance for Working Age People (Consequential and Miscellaneous Amendment and Transitional Provision) (Scotland) Regulations 2022 (S.S.I. 2022/31), regs. 1, 4(2) (with reg. 20)
F23: Reg. 16(2)(cd) inserted (19.11.2023) by The Carer’s Assistance (Carer Support Payment) (Consequential and Miscellaneous Amendments and Transitional Provision) (Scotland) Regulations 2023 (S.S.I. 2023/258), regs. 1, 4(3) (with reg. 9)
F24: Word in reg. 16(2)(cd) omitted (15.3.2026) by virtue of The Carer’s Assistance (Miscellaneous and Consequential Amendments, Revocation, Transitional and Saving Provisions) (Scotland) Regulations 2025 (S.S.I. 2025/340), reg. 1(2), sch. 1 para. 5(3) (with reg. 5(1))
F25: Reg. 16(2)(ce) inserted (21.10.2024) by The Disability Assistance for Older People (Consequential Amendment and Transitional Provision) (Scotland) Regulations 2024 (S.S.I. 2024/141), regs. 1, 5(2) (with reg. 14)
F26: Reg. 16(2)(cf) inserted (21.3.2025) by The Disability Assistance (Scottish Adult Disability Living Allowance) (Consequential Amendment, Revocation and Saving Provision) Regulations 2024 (S.S.I. 2024/311), regs. 1, 5(2)
F27: Reg. 16(2)(cg) inserted (1.6.2026) by The Legal Aid and Advice and Assistance (Miscellaneous Amendment) (Scotland) Regulations 2026 (S.S.I. 2026/117), regs. 1, 4(3)
F28: Reg. 16(2)(g) omitted (1.4.2011) by virtue of The Advice and Assistance and Civil Legal Aid (Special Urgency and Property Recovered or Preserved) (Scotland) Regulations 2011 (S.S.I. 2011/134), regs. 1, 3(a) (with reg. 2)
F29: Word in reg. 16(2)(h) omitted (1.4.2011) by virtue of The Advice and Assistance and Civil Legal Aid (Special Urgency and Property Recovered or Preserved) (Scotland) Regulations 2011 (S.S.I. 2011/134), regs. 1, 3(b) (with reg. 2)
F30: Reg. 16(2)(i)(j) inserted (1.4.1997) by The Advice and Assistance (Scotland) Amendment Regulations 1997 (S.I. 1997/726), regs. 1(1), 4(c) (with reg. 2(1))
F31: Words in reg. 16(2)(i) substituted (1.4.2014) by The Social Care (Self-directed Support) (Scotland) Act 2013 (Consequential and Saving Provisions) Order 2014 (S.S.I. 2014/90), art. 1, sch. Pt. 3 (with art. 3)
F32: Full stop in reg. 16(2)(j) omitted (15.1.2001) by virtue of The Advice and Assistance (Scotland) Amendment (No. 2) Regulations 2000 (S.S.I. 2000/399), regs. 1(1), 4(c)
F33: Reg. 16(2)(k) inserted (15.1.2001) by The Advice and Assistance (Scotland) Amendment (No. 2) Regulations 2000 (S.S.I. 2000/399), regs. 1(1), 4(c)
F34: Reg. 16(2)(k) omitted (1.4.2011) by virtue of The Advice and Assistance and Civil Legal Aid (Special Urgency and Property Recovered or Preserved) (Scotland) Regulations 2011 (S.S.I. 2011/134), regs. 1, 3(a) (with reg. 2)
F35: Words in reg. 16(2) inserted (1.12.2002) by virtue of The Advice and Assistance (Scotland) Amendment Regulations 2002 (S.S.I. 2002/495), regs. 1, 2(b)
F36: Words in reg. 16(2)(l) omitted (9.6.2010) by virtue of The Advice and Assistance and Civil Legal Aid (Transfer of Tribunal Functions) (No. 1) (Scotland) Regulations 2010 (S.S.I. 2010/166), regs. 1, 5(a) (with reg. 2)
F37: Reg. 16(2)(m) inserted (9.6.2010) by The Advice and Assistance and Civil Legal Aid (Transfer of Tribunal Functions) (No. 1) (Scotland) Regulations 2010 (S.S.I. 2010/166), regs. 1, 5(b) (with reg. 2)
F38: Reg. 16(2)(n) inserted (23.1.2023) by The Legal Aid and Advice and Assistance (Miscellaneous Amendment) (Scotland) Regulations 2023 (S.S.I. 2023/11), regs. 1, 2(3)(b)
F39: Words in reg. 16(2)(n) inserted (21.9.2023) by The Legal Aid and Advice and Assistance (Miscellaneous Amendment) (Scotland) (No. 3) Regulations 2023 (S.S.I. 2023/178), regs. 1, 5(4)(b)

Marginal citations

M1: 1985 c.37.
M2: 1976 c.39; section 5 was repealed on 1st September 1986 by the Family Law (Scotland) Act 1985, Schedule 2, subject to a saving in section 28(3) of that Act.
M3: 1950 c.37.
M4: 1972 c.18.
M5: 1982 c.27.
M6: Section 130 was amended by the Local Government Finance Act 1992, Schedule 9, paragraph 3 and by the Local Government etc. (Scotland) Act 1994 (c.39), Schedule 13, paragraph 174(4).
M7: 1991 c.48.
M8: Section 151 was amended by the Social Security (Incapacity for Work) Act 1994 (c.18) (“the 1994 Act"), Schedule 1, paragraph 34; section 157 was amended by the 1994 Act, section 8 and by S.I. 1993/350, 1994/542, 1995/559 and 562; section 158 was amended by the 1994 Act, section 8 and repealed in part by the Statutory Sick Pay Act 1994 (c.2) (“the SSP Act"), section 1; section 159A was inserted by the SSP Act, section 3; and section 163 was amended by the 1994 Act, Schedule 1, paragraph 35 and repealed in part by the 1994 Act, Schedule 2 and the Jobseekers Act 1995 (c.18), Schedule 3.
M9: Section 30A was inserted by the Social Security (Incapacity for Work) Act 1994 (c.18), section 1 and came into force on 13 April 1995 by virtue of S.I. 1994/2926.
M10: Section 44 was amended by the Pension Schemes Act 1993 (c.48) (“the 1993 Act"), Schedule 8, paragraph 38, by the Social Security (Incapacity for Work) Act 1994 (c.18) (“the 1994 Act"), Schedule 1, paragraph 11 and by the Pensions Act 1995 (c.26) (“the 1995 Act"), section 128; section 45A was inserted by the 1995 Act, section 127; section 46 was amended by the 1994 Act, Schedule 1, paragraph 12 and by the 1995 Act, Schedule 4, paragraph 21(5) and was repealed in part by the 1994 Act, Schedule 2; section 47 was amended by the 1993 Act, Schedule 8, paragraph 39, by the 1994 Act, Schedule 1, paragraph 13 and by S.I. 1995/559; sections 49 and 50 were substituted by the 1995 Act, Schedule 4, paragraph 3; section 51A was inserted by the 1995 Act, Schedule 4, paragraph 21(6); section 53 was repealed by the 1995 Act, Schedules 4 and 7; and section 54 was amended by the 1995 Act, section 134 and Schedule 4, paragraph 6 and repealed in part by the 1995 Act, Schedule 7.
M11: Section 164 was repealed in part by S.I. 1994/1230.
M12: Sections 40 to 42 were substituted by the Social Security (Incapacity for Work) Act 1994 (c.18), Schedule 1, paragraphs 8, 9 and 10.
M13: Section 70 was amended and repealed in part by S.I. 1994/2556.
M14: 1996 c.18.