Legal Advice and Assistance Regulations 1989

1989No. 340

LEGAL AID AND ADVICE, ENGLAND AND WALES

The Legal Advice and Assistance Regulations 1989

3rdMarch1989

8thMarch1989

1stApril1989

ARRANGEMENT OF REGULATIONS

1. Citation, commencement, and transitional provisions.

2. Revocations.

3. Interpretation.

4. Limit on cost of advice and assistance.

5. ABWOR relating to applications for further detention.

6. Provision of advice and assistance at police stations.

7. ABWOR in criminal proceedings in magistrates' courts.

8. Advice and assistance in criminal proceedings in magistrates' courts.

9. Applications for advice and assistance.

10. Attendance on behalf of a client.

11. Eligibility for advice and assistance to which regulation 9 applies.

12. Contributions to the cost of advice and assistance to which regulation 9 applies.

13. Determination of disposable income, disposable capital and maximum contribution.

14. Children and patients.

15. Clients resident outside England and Wales.

16. Advice and assistance from more than one solicitor.

17. Separate matters.

18. Refusal of advice and assistance.

19. Power to require information.

20. Entrusting functions to others.

21. Extensions.

22. Applications for approval of ABWOR.

23. Counsel.

24. Notification of approval of ABWOR.

25. Withdrawal of approval of ABWOR.

26. Appeals against refusal of ABWOR etc.

27. Determination of appeals.

28. Collection and refund of contributions.

29. Costs payable out of the fund.

30. Basis of assessments.

31. Recovery of costs.

32. Exceptions to charge on property recovered or preserved.

33. Authority not to enforce the charge.

34. Costs awarded against a client.

35. Costs of successful unassisted parties out of the Fund.

36. False statements etc.

The Lord Chancellor, in exercise of the powers conferred on him by sections 2, 9, 10, 11, 34, and 43 of the Legal Aid Act 1988( a), having consulted the General Council of the Bar, the Law Society, the County Court Rule Committee and the Magistrates' Courts Rule Committee, and with the consent of the Treasury, hereby makes the following Regulations:-

Citation, commencement, and transitional provisions

1.-(1) These Regulations may be cited as the Legal Advice and Assistance Regulations 1989 and shall come into force on 1st April 1989.

(2) Where a review under paragraph (7) of regulation 29 relates to a claim made before 1st June 1989, paragraphs (8) and (9) of that regulation shall not apply and the solicitor may appeal in writing within 21 days of receipt of notification of the decision on the review to a committee appointed by the Board.

Revocations

2. The Regulations specified in Schedule 1 are hereby revoked.

Interpretation

3.-(1) In these Regulations, unless the context otherwise requires-

"ABWOR" means assistance by way of representation;

"the Act" means the Legal Aid Act 1988;

"appropriate area committee" means the area committee in whose area an application for advice and assistance, or a claim for costs has been dealt with by an Area Director;

"area committee" has the meaning assigned to it in the Civil Legal Aid (General) Regulations 1989( b);

"Area Director" has the meaning assigned to it in the Civil Legal Aid (General) Regulations 1989;

"assessed deficiency" means the amount by which the sum allowed to the solicitor by the Area Director in assessing his claim under regulation 29 exceeds any contribution payable by the client to the solicitor under section 9 of the Act together with the value of any charge arising under section 11 of the Act;

"board of visitors" means a board of visitors appointed by the Secretary of State under section 6(2) of the Prison Act 1952 ( c);

"child" means a person under the age that is for the time being the upper limit of compulsory school age by virtue of section 35 of the Education Act 1944( d) together with any Order in Council made under that section;

"client" means a person seeking or receiving advice and assistance or on whose behalf advice and assistance is sought;

"costs" means the cost of giving advice or assistance, including disbursements, charges and fees;

"Costs Regulations" means the Legal Aid in Criminal and Care Proceedings (Costs) Regulations 1989( e);

"extension" means the grant of prior authority to exceed the limit prescribed under section 10(1) of the Act and, where appropriate, the grant of prior authority to exceed any further limit imposed under regulation 21(3) or 22(8);

"family credit" means family credit under the Social Security Act 1986( f)

"fund" means the legal aid fund;

"income support" means income support under the Social Security Act 1986;

"patient" means a person who by reason of mental disorder within the meaning of the Mental Health Act 1983( g) is incapable of managing and administering his property and affairs;

"Scope Regulations" means the Legal Advice and Assistance (Scope) Regulations 1989( h);

(a) 1988 c.34.

(b) S.I. 1989/339.

(c) 1952 c.52.

(d) 1944 c.31.

(e) S.I. 1989/343.

(f) 1986 c.50.

(g) 1983 c.20.

(h) S.I. 1989/.

"serious service offence" means an offence under any of the Army Act 1955( a), the Air Force Act 1955( b), or the Naval Discipline Act 1957( c) which cannot be dealt with summarily or which appears to an interviewing service policeman to be serious;

"volunteer" means a person who, for the purpose of assisting with an investigation, attends voluntarily at a police station or at any other place where a constable is present or accompanies a constable to a police station or any such other place without having been arrested.

(2) Any reference in these Regulations to a regulation or Schedule by number means the regulation or Schedule so numbered in these Regulations.

Limit on cost of advice and assistance

4.-(1) Subject to paragraph (2), the limit applicable under section 10(1) of the Act is-

(a) in respect of advice and assistance given in accordance with regulation 6(1), £90;(b) in respect of advice and assistance provided to a petitioner for divorce or judicial separation which includes advice or assistance in the preparation of the petition, three times the relevant sum specified for preparation in the table in paragraph 1(1)(a) of part 1 of Schedule 1 to the Costs Regulations;(c) in respect of all other advice and assistance, twice the relevant sum referred to in sub-paragraph (b);

(2) Section 10(1) of the Act shall not apply to-

(a) advice or assistance specified in regulation 5(1)(b) of the Legal Advice and Assistance at Police Stations (Remuneration) Regulations 1989( d) where the interests of justice require such advice or assistance to be given as a matter of urgency; or(b) ABWOR provided under arrangements made by the Board under regulation 7; or(c) advice or assistance given under arrangements made by the Board under regulation 8.

ABWOR relating to applications for further detention

5. ABWOR to which Part III of the Act applies by virtue of regulation 7(1)(c) of the Scope Regulations (application for warrant of further detention) shall be available without reference to the client's financial resources.

Provision of advice and assistance at police stations etc

6.-(1) A solicitor may give advice and assistance to any person who-

(a) is arrested and held in custody at a police station or other premises; or(b) is being interviewed in connection with a serious service offence; or(c) is a volunteer.

(2) Subject to any arrangements made by the Board under paragraph (3), an application for advice and assistance in the circumstances specified in paragraph (1) may be made by telephone to the solicitor from whom the advice and assistance is sought.

(3) The Board may make arrangements for solicitors designated by the Board to attend at police stations or other premises in order to provide advice and assistance under paragraph (1).

(4) Advice and assistance given under this regulation shall be available without reference to the client's financial resources.

ABWOR in criminal proceedings in magistrates' courts

7.-(1) The Board may make arrangements for the provision of ABWOR to which Part III of the Act applies by virtue of regulation 7(2) and (4) of the Scope Regulations.

(2) Arrangements under paragraph (1) may provide for solicitors designated by the Board to attend at magistrates' courts.

(3) ABWOR under this regulation shall be available without reference to the client's financial resources.

Advice and assistance in criminal proceedings in magistrates' courts

8.-(1) Arrangements under regulation 7 may provide for a solicitor who gives ABWOR in accordance with them also to give-

(a) advice to a defendant who is in custody;(b) advice to a defendant who is before the court as a result of a failure to pay a fine or other sum which he was ordered on conviction to pay, or to obey an order of the court, where such failure may lead to his being at risk of imprisonment;(c) advice, where in the opinion of the solicitor the defendant requires it, to a defendant who is not in custody;(d) assistance to a defendant to make an application for representation under the Act in respect of any subsequent appearance of the defendant before the court.

(2) Advice and assistance given under this regulation shall be available without reference to the client's financial resources.

Applications for advice and assistance

9.-(1) An application for advice and assistance to which this regulation applies shall be made in accordance with its provisions to the solicitor from whom the advice and assistance is sought.

(2) This regulation applies to all advice and assistance except-

(a) advice or assistance given under regulation 6 or 8; and(b) ABWOR given under regulation 7, or to which Part III of the Act applies by virtue of regulation 7(1)(c) of the Scope Regulations (warrants of further detention).

(3) Subject to regulations 10 and 15, the application under paragraph (1) shall be made by the client in person.

(4) Where a client makes an application under paragraph (1) he shall provide the solicitor with the information...

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