Advice and Assistance (Scotland) (Consolidation and Amendment) Regulations 1996
1996 No. 2447 (S.192)
LEGAL AID AND ADVICE, SCOTLAND
The Advice and Assistance (Scotland) (Consolidation and Amendment) Regulations 1996
Made 19th September 1996
Laid before Parliament 24th September 1996
Coming into force 7th October 1996
The Secretary of State, in exercise of the powers conferred on him by sections 12(3), 33(2)(b) and (3), 36(1), (2)(a), (d) and (e) and (4), 37(1) and (3) and 42 of the Legal Aid (Scotland) Act 19861, and of all other powers enabling him in that behalf, and with the concurrence of the Treasury, in respect of regulation 7 and Schedule 2, hereby makes the following Regulations:
Citation and commencement
1. These Regulations may be cited as the Advice and Assistance (Scotland) (Consolidation and Amendment) Regulations 1996 and shall come into force on 7th October 1996.
Interpretation
2.—(1) In these Regulations, unless the context otherwise requires–
“the Act” means the Legal Aid (Scotland) Act 1986;
“the 1992 Act” means the Social Security Contributions and Benefits Act 19922;
“advice and assistance” means advice and assistance given under Part II of the Act;
“auditor” in relation to the taxation of accounts means the auditor of a sheriff court;
“child” means a person under 16 years.
(2) In these Regulations, unless the context otherwise requires, any reference to a numbered regulation is to one of these Regulations and any reference to a numbered Schedule is to a Schedule to these Regulations.
Revocations and savings
3.—(1) Subject to paragraphs (2) and (3) below, the Regulations specified in Schedule 1 are hereby revoked.
(2) The revocation by these Regulations of–
(i)
(i) a transitional provision relating to the coming into force of; or
(ii)
(ii) an application provision which restricts the application of,
a provision which is revoked and re-enacted by these Regulations does not affect the operation of that transitional provision, insofar as it remains capable of having effect, in relation to the provision which is re-enacted in these Regulations.
(3) Where a period of time specified in any provision, which is revoked by these Regulations, is current at the date of coming into force of these Regulations, these Regulations have effect as if the provision which re-enacts that revoked provision in these Regulations had been in force when that period began to run.
Applications for advice and assistance
4. An application for advice and assistance, which shall be in such form as the Board may require, shall be signed by the client, or by a person who may apply on his behalf by virtue of regulation 6, and shall include such information as is necessary to enable the solicitor–
(a) to determine the client’s disposable capital and either his disposable income or, where appropriate, whether he is in receipt of disability working allowance, income support or family credit; and
(b) otherwise to satisfy himself as to the client’s eligibility to receive advice and assistance.
Applications for advice and assistance in relation to the Civil Jurisdiction and Judgments Act 1982
5.—(1) Sections 8, 11 and 12(3) of the Act3shall be modified to the extent provided in the following sub-paragraphs in the case of an application for advice and assistance in relation to the recognition of enforcement of a judgment under section 5 of the Civil Jurisdiction and Judgments Act 19824by an applicant to whom this regulation applies, namely:–
(a)
(a) section 8 shall be modified so as to provide that such advice and assistance shall be made available whether within or furth of Scotland without regard to the income or capital of an applicant to whom this regulation applies;
(b)
(b) section 11 shall be modified so as to provide that such applicant shall, irrespective of his disposable income, not require to pay any fees or outlays in respect of such advice and assistance; and
(c)
(c) section 12(3) shall be modified so as to provide that fees or outlays to which section 12 applies shall be paid to the solicitor in respect of such advice and assistance provided to such applicant–
(i) firstly, in priority to all other debts, out of any expenses which (by virtue of a judgment or order of a court or an agreement or otherwise) are payable to the applicant by any other person in respect of the matter in connection with which the advice and assistance is provided; and
(ii) secondly, by the Board out of the Fund, following receipt by it of a claim submitted by the solicitor.
(2) This regulation applies to–
(a)
(a) an applicant who seeks advice and assistance in relation to the enforcement of a decision given by an administrative authority in Denmark or Iceland and who presents a statement from, respectively, the Danish Ministry of Justice or the Icelandic Ministry of Justice to the effect that he fulfils the economic requirements to qualify for the grant of complete or partial legal aid or exemption from costs or expenses; and
(b)
(b) an applicant who, in the State of origin of the judgment, has benefited from complete or partial legal aid or exemption from costs or expenses.
Applications on behalf of others
6.—(1) A client who for good reason cannot himself make application in accordance with regulation 4 may authorise another person to apply on his behalf and to furnish such information as is required by regulation 4.
(2) Without prejudice to any right of a child to apply under regulation 4 or to authorise application on his behalf under paragraph (1) of this regulation, application for advice and assistance on behalf of a child may be made by any person having parental responsibilities within the meaning of section 1(3) of the Children (Scotland) Act 19955in relation to the child or by any person in whose care he is, or by a person acting for the purpose of any proceedings as his tutor or curator.
(3) An application for advice and assistance in relation to the recognition or enforcement of a judgment under section 5 of the Civil Jurisdiction and Judgments Act 1982 may be signed on behalf of the client by the solicitor to whom the application is made.
Determination of disposable income or disposable capital
7.—(1) Insofar as the Act requires a client’s disposable income or disposable capital to be determined for purposes of an application for advice and assistance, they shall be determined by the solicitor to whom application is made in accordance with the provisions of Schedule 2.
(2) A man and a woman who are not married to each other and who are living together in the same household as husband and wife shall be treated for the purposes of section 42 of the Act as if they were spouses of each other.
Giving of advice and assistance by solicitor
8. A solicitor shall give advice and assistance in pursuance of Part II of the Act only if he has satisfied himself that the client is eligible to receive advice and assistance under the provisions of the Act and of these Regulations.
Determination and collection of contributions
9.—(1) Where a client is liable by virtue of section 11 of the Act to pay a contribution towards the cost of the advice and assistance, the solicitor shall determine the maximum amount which the client is, by virtue of that section, liable to pay, and may collect that contribution in full or in such instalments as may be agreed between him and the applicant.
(2) Where by agreement the client’s contribution is payable by instalments and the client defaults in making payment of any instalment, the solicitor shall be entitled to cease to act, without prejudice to his right to require payment of any deficiency in respect of work done and outlays incurred, or to the right of the client to demand an accounting from the solicitor for sums already paid.
(3) Where the total contribution payable is likely to exceed the cost of giving advice or assistance, the solicitor shall require the client to pay a sum sufficient only to meet the expected cost.
Applicant for assistance by way of representation having other rights and facilities
10.—(1) Where it appears to the solicitor that an applicant for assistance by way of representation has available rights and facilities making it unnecessary for him to obtain advice or assistance or has a reasonable expectation of obtaining financial or other help from a body of which he is a member, the solicitor shall not approve the application unless the applicant has not succeeded in enforcing or obtaining such rights, facilities or help, after having taken, in the opinion of the solicitor, all reasonable steps to enforce or obtain them:
Provided that the applicant shall not, for the purpose of this regulation, be deemed to have failed to take all reasonable steps by reason only that he has not taken proceedings by way of declarator or otherwise to enforce or obtain such rights, facilities or help.
(2) Where the solicitor approves an application for assistance by way of representation by a person who is a member of a body which might reasonably have been expected to give him financial help towards the expenses of the advice and assistance, the solicitor shall require him to sign an undertaking to pay to the Board any sum received from that body on account of the expenses of the advice and assistance.
Notice to the Board on acceptance of application
11. The solicitor shall, within 14 days of his having begun to give advice and assistance, send to the Board a copy of the...
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