ADVICE AND ASSISTANCE GUIDELINES

Transcription

1 ADVICE AND ASSISTANCE GUIDELINES Revised AA/GUIDE

2 INTRODUCTION These guidelines have been issued primarily for the use of Board staff considering applications by solicitors for increases in authorised expenditure under advice and assistance. They cover a range of topics and types of application. They are designed to give you a basic background to the type of case involved, and the work that a solicitor may have to carry out in order to meet his or her client s needs. In addition, they set out who, within the Board, is authorised to make a decision on the type of case an approximate level of increase that would be reasonable in the circumstances. The guidelines are not intended to apply in all circumstances to every case. Each case should be treated on its own merits. If you are in any doubt about the appropriate decision, always refer the case upwards. We have designed the guidelines so that they can be kept in a loose-leaf folder and updated as appropriate. Each individual guideline is dated and indexed in the bottom right hand corner. The contents page at the beginning of the document shows the date of issue. As new guidelines are issued, new contents pages will also be issued, so that you can ensure that you are using the most up-to-date version. The guidelines are also being issued to solicitors to show what information the Board needs to see in advice and assistance increase applications, and how it reaches its decisions. AA/GUIDE

3 AA/GUIDE

4 CONTENTS GUIDELINE NO. DATE OF ISSUE PART A PROCEDURES A 1 Invalid grants of advice and assistance by solicitor February 03 late applications multiple applications duplicate applications A 2 Telephone requests in matters of urgency February 03 A 3 Supporting documentation February 03 A 4 Aggregation of resources in advice and assistance February 03 A 5 Change of financial circumstances of applicant February 03 A 6 Reimbursement of outlays (where civil legal aid granted) February 03 A 7 Companies, partnerships, clubs and associations February 03 A 8 Transfer of full certificates February 03 A 9 English and foreign matters February 03 A 10 Death of an applicant February 03 PART B EMPLOYMENT OF THIRD PARTIES B 1 Employment of counsel February 03 B 2 Expert witnesses based at a distance February 03 B 3 Mediation in non-family cases February 03 B 4 Private investigators February 03 B 5 Tracing relatives/witnesses/fishing enquiries February 03 B 6 Watching brief February 03 PART C TYPES OF CASE C 1 Breach of probation/ community service/ supervised February 03 attendance orders C 2 Caveats February 03 C 3 Child abduction convention applications February 03 C 4 Child Support Agency - Child Support Act 1991 February 03 C 5 Children s hearings and appeals February 03 C 6 Civil legal aid applications - appropriate increase for lodging February 03 C 7/1 Conveyancing February 03 C 7/2 Conveyancing transfer of matrimonial home between February 03 spouses or cohabitees on separation or divorce C 8 Criminal injuries compensation claims February 03 C 9 Crofting February 03 C 10 Curators ad litem February 03 C 11 Diligence February 03 Divorce and family matters February 03 C 12/1 divorce simplified procedure February 03 C 12/2 divorce two years separation February 03 C 12/3 divorce five years separation February 03 C 12/4 divorce unreasonable behaviour February 03 C 12/5 divorce adultery February 03 C 12/6 divorce desertion February 03 C 12/7 divorce ancillary craves February 03 AA/GUIDE

5 C 12/8 separation February 03 C 12/9 residence order/contact order February 03 C 12/10 minutes of agreement February 03 C 12/11 adoption February 03 C 12/12 declarator of parentage February 03 C 12/13 assumption of parental rights /parental responsibilities February 03 C 12/14 aliment enforcement February 03 C 13 DNA fingerprinting February 03 C 14/1 Employment tribunals February 03 C 14/2 ABWOR for representation February 01 C 15 European agreement on the transmission of applications for February 03 legal aid C 16 European Convention on Human Rights February 03 C 17 Executry February 03 C 18 Fatal accident inquiries February 03 C 19 Housing February 03 C 20 Interdict/breach of interdict February 03 C 21 Judicial review and judicial review of Board decisions February 03 C 22 Means enquiry February 03 C 23 Mental Health (Scotland) Act 1984 February 03 C 24 Non-harassment orders February 03 C 25 Pensions February 03 C 26 Pension splitting C 27 Reparation February 03 C 27/1 Beat knee February 03 C 27/2 Catholic orphanages February 03 C 27/3 Dyslexia February 03 C 27/4 E-coli February 03 C 27/5 Gulf war syndrome February 03 C 27/6 Hepatitis C infections February 03 C 27/7 Industrial deafness February 03 C 27/8 Post traumatic stress disorder February 03 C 27/9 Professional negligence February 03 C 27/10 Tobacco claims February 03 C 27/11 Vibration white finger February 03 C 27/12 Welder s lung February 03 Reparation drugs-related cases February 03 C 28/1 Steroids February 03 C 28/2 Vaccine damage February 03 C 29 Restoration of driving licences February 03 C 30 Scottish Criminal Cases Review Commission February 03 C 31 Small claims February 03 C 32 Social security February 03 C 33 Welfare benefit analysis February 03 C 34 Wills February 03 AA/GUIDE

6 PART A PROCEDURES AA/GUIDE/A

7 INVALID GRANTS OF ADVICE AND ASSISTANCE BY SOLICITOR The decision to grant or refuse an advice and assistance (A&A) application is made by the applicant s solicitor, following which the intimation form is sent to the Board. The Board may, however, decide to reject an application, if it falls within one of the following categories 1. late 2. multiple 3. duplicate This section explains the circumstances in which the Board may decide to reject an advice and assistance application. These are set out in Regulations 11 and 13 of the Advice and Assistance (Scotland) Regulations Late applications Applications that we receive more than 16 days after the date when advice and assistance commenced are deemed to be late. (This allows two days for postage in addition to the 14-day time limit specified in the Regulations.) Our computer system will identify these. We will accept late applications if we consider that there is a special reason to justify lateness, such as illness of the client or solicitor staffing problems in the solicitor s office public holidays any other reason that we are satisfied is valid. Each case should be looked at on its own merits. Registration clerical officer 2. Multiple applications If we receive more than one advice and assistance intimation from the same solicitor apparently relating to a single occasion when advice and assistance has been given, our computer system will identify these. This may happen, for instance, where advice and assistance has been given for a number of different topics and separate application forms are submitted. In these circumstances, we will contact the solicitor to discuss the case(s). If, following discussion, we consider that the advice and assistance given related to the same subject, we will reject the application. 3. Duplicate applications Under the Regulations, a client cannot be given advice and assistance in respect of the same matter by more than one solicitor without the prior authority of the Board. AA/GUIDE/A/1

8 Our computer system identifies possible duplicate applications, and cases where a solicitor has submitted a second application form when the matter should have been dealt with under the original grant of advice and assistance. If we identify possible duplicate applications, we have to determine whether this is justified. Acceptable reasons include: the applicant has justifiably lost confidence in the original solicitor the applicant has changed his/her solicitor for convenience, for example, if s/he has moved house the applicant has changed solicitor because of a conflict of interest with other parties involved in the action who are using the same solicitor. A statement that the applicant was unhappy with the previous advice is insufficient. AA/GUIDE/A/1

9 TELEPHONE REQUESTS IN MATTERS OF URGENCY As increases cannot be granted retrospectively, it will occasionally be necessary for a solicitor to seek a telephone grant in matters of urgency. An increase may be granted by telephone if the solicitor s request and explanation are reasonable and the matter must be dealt with immediately, or at any rate in less time than it would take to process an application in the normal way. Where a telephone grant is made, the solicitor must be told to submit a completed and signed form AA/INC within seven days or whatever other period may, in the circumstances, be considered reasonable. Where the solicitor is unwilling to accept refusal of a telephone request, the call should be transferred to the Assistant Manager or staff solicitor. A full record of all telephone requests, if granted, must be placed on file. AA/GUIDE/A/2

10 SUPPORTING DOCUMENTATION We do not keep paper advice and assistance files, and do not therefore have copies of information provided for earlier requests. Solicitors must be asked to produce copies of earlier requests in support of any further request for an increase. In some situations supporting documentation must be provided before we can consider a request, and these include request for supplementary medical report original medical report request to negotiate industrial deafness claim medical report request to proceed to C.I.C.A. hearing intimation of rejection of claim any document referred to in the request as being enclosed. AA/GUIDE/A/3

11 AGGREGATION OF RESOURCES IN ADVICE AND ASSISTANCE In terms of Schedule 2 Paragraph 5(c) of the Advice and Assistance Regulations 1996, a spouse s resources are treated as the applicant s unless the spouse has a contrary interest, the couple are separated and living apart or in all the circumstances it would be inequitable or impracticable to do so. It is for the solicitor to decide whether it would be inequitable or impracticable to aggregate the resources and in view of both the regulations and the Board s guidelines on advice and assistance, it would be difficult to argue with the solicitor s decision. Regulation 7(2) deals with the aggregation of resources of couples who are living together as if married and gives authority to treat them as spouses. The terms of Schedule 2 Paragraph 5(c) apply to people living together as well as married couples. AA/GUIDE/A/4

12 CHANGE OF FINANCIAL CIRCUMSTANCES OF APPLICANT If we are given information that appears to show that a change in an applicant s financial circumstances would put him substantially out of scope for advice and assistance, a request for an increase should generally be refused as unreasonable. AA/GUIDE/A/5

13 REIMBURSEMENT OF OUTLAYS The Board s civil reimbursement scheme can cover advice and assistance outlays (where these have already been paid or are not to be paid until funds are received from the Board). Solicitors can recoup outlays under advice and assistance provided civil legal aid has been granted the outlays amount to at least 100 the civil proceedings are still ongoing and relevant documentation is submitted. A request for payment must be made using form SLA/ROL/2, accompanied by copy AA/INC forms for relevant increases. Payment will be made under the civil legal aid reference number. Should the outlays under advice and assistance total less that 100, the Board will accept a combined claim for reimbursement under advice and assistance and the civil certificate where the total combined claim exceeds 150. In this case, both SLA/ROL/1 and SLA/ROL/2 forms must be submitted along with appropriate documentation. In addition outlays under advice and assistance can be met in cases where no civil legal aid has been made available if certain conditions are met. Solicitors can recoup outlays provided the application does not involve any potential for recovery or preservation of property the outlays have amounted to at least 100 the application was granted after 8 July 2002 payment of the outlay has been made the outlay exceeds the assessed contribution proof of the level of authorised expenditure is supplied A request for payment must be made using the form SLA/ROL/5. AA/GUIDE/A/6

14 COMPANIES, PARTNERSHIPS, CLUBS AND ASSOCIATIONS In terms of Section 6 of the Legal Aid (Scotland) Act 1986, advice and assistance may be given only to a person. This term is defined in Section 41 of the Act as excluding a body corporate or unincorporate, except where such body is acting in a representative, fiduciary or official capacity. Examples of a body corporate would be a limited company, a plc, a company established by a charter or by Act of Parliament. Examples of a body unincorporate would be a firm or partnership including a limited partnership, a club, society or association. Advice and assistance cannot, therefore, be given to any of these bodies, or anything that seems to be of a similar type, in their own right. However, civil legal aid can be granted where the body is acting in a representative, fiduciary or official capacity, and there are some other circumstances where legal aid may be granted to an individual who is an official or partner in a body. The following are examples of such circumstances. It is competent to give advice and assistance to a company director for a matter concerning him, but if the company has the same interest, or a greater interest, it may not be reasonable to give an increase. Advice and assistance should not be given to a partner in a matter concerning the partnership, as that would be equivalent to giving it to the partnership. However, if a partner is in dispute with the other partners, advice and assistance may be given in respect of that dispute. If a partnership has been dissolved, advice and assistance may be given to a former partner in respect of partnership matters. Clubs and associations usually act through their office bearers. Advice and assistance should not be given to any office bearer as that would be equivalent to giving it to the club or association unless the office bearer is to be personally liable for the actings of the club or association. If an office bearer is in dispute with the other office bearers, it would be competent to give advice and assistance to that office bearer in respect of the dispute. AA/GUIDE/A/7

15 TRANSFER OF FULL CERTIFICATES Advice and assistance may be given by a second or subsequent solicitor to enable him/her to carry out work involved in applying for a transfer of a full legal aid certificate. The initial authorised limit of expenditure should be sufficient for the work involved in the transfer, and increases should not normally be granted. If you are in doubt and feel there may be special circumstances, refer the case to a solicitor. AA/GUIDE/A/8

16 ENGLISH AND FOREIGN MATTERS Sometimes applicants may seek advice from a solicitor in Scotland on a matter of English or foreign law. How much help a solicitor in Scotland can give will depend on the circumstances. Because of the increasing number of international conventions or agreements affecting a wide range of human activities, it may not always be clear whether the subject matter involves Scots law. A solicitor can use advice and assistance to discuss the matter with the client and advise him/her. Even if a matter of foreign law is involved, the client may have some protection available to him under Scots law and must be advised accordingly. If it becomes apparent that Scots law has no application to the rights and remedies sought by the applicant, Scottish advice and assistance must cease. However, the solicitor may use advice and assistance to put his client in touch with a lawyer in the appropriate foreign jurisdiction. It should be possible for the solicitor to deal with this matter without an increase. If s/he is to retain a further interest in the case (as a correspondent for instance) once a foreign lawyer has become involved, his/her fees and outlays can only be settled under whatever assistance or legal aid is available in the foreign jurisdiction. If, however, the matter is to proceed in accordance with foreign law before a Scottish court, then an increase may be granted to enable an application for civil legal aid to be made. (See AA/GUIDE/C/16 European Convention on Human Rights, and AA/GUIDE/C/15 European Agreement on the transmission of applications for legal aid.) AA/GUIDE/A/9

17 DEATH OF AN APPLICANT When an agent is providing advice and assistance to an applicant who subsequently dies, a reasonable increase may be granted for the agents to tidy up any loose ends in connection with the subject matter of the advice and assistance. AA/GUIDE/A/10

18 PART B EMPLOYMENT OF THIRD PARTIES AA/GUIDE/B

19 EMPLOYMENT OF COUNSEL The use made of counsel under advice and assistance is limited. Requests for increases can be submitted to obtain an opinion of counsel in relation to the subject matter of a legal aid application to cover the cost of consultations with counsel. There are very few other occasions where solicitors will seek an increase to cover counsel s costs. All requests should be referred to a solicitor. If an increase is sought to obtain an opinion of counsel the solicitor should give full reasons why this is necessary there should be a proper explanation of the background and, in particular, any complexity attempts should always be made to show that the problem is beyond the competence of a practising solicitor. Consideration should always be given to the purpose of obtaining the opinion what exactly is the legal issue to be considered by counsel? is this a matter so complex or so unusual that it appears to be outwith the scope of a solicitor s knowledge or experience? or does the solicitor almost know the answer to the problem, but just wants counsel s opinion for reassurance? does the solicitor claim his/her client does not want to believe an unfavourable opinion given by the solicitor is there enough information to place before counsel to enable counsel to give a meaningful opinion? what is the opinion to be used for? will the parties agree to abide by its terms and thereby avoid litigation? will it perhaps save expenses in the long run? is it premature to ask for counsel s opinion? is the opinion necessary for consideration of a legal aid application? Appeal applications Increases may often be requested for an opinion of counsel in connection with an appeal application. If the applicant was legally aided when the matter was considered by the court at first instance and there was authorisation to instruct counsel in those proceedings the solicitors should be advised that the previous certificate will cover an opinion from junior counsel (or senior counsel if senior was instructed with the approval of the Board) on the prospects of success of an appeal. AA/GUIDE/B/1

20 Senior counsel Requests for senior counsel will be for advice on a very complex issue or a novel point of law, for example sometimes funding might have been approved for senior counsel for one of a number of applicants with problems related to the same issue group actions may fall into this category and are generally the subject of a separate procedure medical negligence actions may result in a request for senior counsel to interpret complex medical evidence. Is there a copy of any note from junior counsel, if appropriate, recommending the employment of senior counsel? Preparation of petitions or revision of pleadings Advice and assistance cannot be made available for any step in court proceedings (except where these are covered by ABWOR). Requests for counsel to prepare petitions or revise pleadings should therefore be refused. In conclusion Is there any information as to what the legal issue is and the need for counsel? Where sufficient information is available, do you think that it is adequate to establish the legal issue involved and that this is complex, novel or something which otherwise requires the use of counsel. Bear in mind the nature and value of the subject matter is it sufficiently serious or potentially valuable or perhaps more than de minimis but not of great value or significant importance to client? You may be satisfied that it is in order to grant for an opinion but not necessarily for a consultation or, vice versa. Any restriction should be stated. If you are satisfied that the request warrants an opinion of counsel, make sure that it is quite clear whether it has been granted for junior or senior counsel. Remember to allow enough not just for the cost of the opinion or the consultation itself, but also for the solicitor s work. As always, is it necessary and reasonable? All requests should be referred to a solicitor, who will grant if they are satisfied that all of these criteria are met. Solicitor AA/GUIDE/B/1

21 EXPERT WITNESSES BASED AT A DISTANCE It is normally more expensive to employ a medical or other expert who is based at some distance from the court, compared with an expert closer to the court. If a solicitor seeks to employ such an expert, s/he should be asked whether s/he has made any attempt to find a suitable expert based closer to the court. If the solicitor confirms s/he is unable to obtain the services of a suitable expert closer to the court, an appropriate increase in expenditure may be given. The solicitor should be asked to tell us the likely costs of employing that expert and, in due course, to give us his/her details (for example, his/her name and the university, hospital etc in which s/he works). In cases where an expert is available closer to the court, but the solicitor does not wish to use him/her (sometimes in cases of medical negligence), the solicitor must satisfy us that the additional expense is justified before we will authorise an expert from a distance. If the applicant lives at a distance from the court, it may well be cheaper, and therefore justifiable, to have an expert from elsewhere make a preliminary investigation. AA/GUIDE/B/2

22 MEDIATION IN NON-FAMILY CASES The costs of non-family mediation may be allowed under advice and assistance provided certain conditions are met. This will, of course, apply only to the client s own share of the total mediation fee, and not any share which is to be borne by an opponent or opponents. If the opponent is also receiving legal aid or advice and assistance, s/he should seek sanction or an increase in authorised expenditure to cover his/her share of the cost. We will normally only consider requests for mediation involving mediators accredited by the Association of Mediators, the Centre for Dispute Resolution (CEDR) or the Law Society of Scotland under its Accord scheme, although we may also agree to the use of other accredited specialists. There is no restriction on the type of case that can be considered suitable for mediation, but we will base our decisions on the criteria set out below. Where solicitors wish to make use of mediation facilities, they must request an increase in authorised expenditure to cover the cost of the mediation proceedings. An initial increase of will normally be considered reasonable. Before we can consider a request for an increase, we need the following information: the form that the mediation will take and, in particular, whether there will be legal representation on both sides details of the fees the mediator will charge and whether this will be at a flat rate, regardless of the duration of the mediation, or at an hourly or daily rate an estimate of the time to be spent by the solicitor on advising the assisted person before and after the mediation the prospects of success and the likelihood of being able to resolve the dispute by way of mediation the client s attitude towards the mediation and the likelihood of both parties accepting the outcome of any mediation where possible, the costs that will be avoided should the mediation go ahead, for example, avoiding a proof or other court hearing. We would normally expect the parties to enter into a legally binding agreement at the conclusion of the mediation. Solicitors should provide the Board with information on the outcome of the mediation and, if it was not successful, the reason why not. We will need the latter information if a further increase is sought. Where the case concludes following the mediation, the solicitor should indicate in the narrative of their account whether the mediation resulted in a settlement. Solicitor AA/GUIDE/B/3

23 PRIVATE INVESTIGATORS As a result of the introduction of the Civil Evidence (Scotland) Act 1988, in adultery cases the Board will allow only one enquiry agent unless the solicitor can show that there is special reason for two to be instructed. This must be taken into account in determining the appropriate level of increase. (Refer also to the article Evidence of Enquiry Agents in Divorce Actions on page 2 of Recorder no.7, Summer 1990.) (See also AA/GUIDE/B/5 on tracing relatives/witnesses/fishing enquiries.) AA/GUIDE/B/4

24 TRACING RELATIVES/WITNESSES/FISHING ENQUIRIES Advice and assistance is not available to cover advertising or making enquiries regarding relatives merely to discover where they are or exactly what has happened to them for fishing enquiries such as tracing a spouse and keeping watch to see if he or she is committing adultery, based only on suspicion. An increase can be granted to find out where the person is, however if the enquiries are needed before legal proceedings can take place, for example for presumption of death or before raising divorce proceedings to enable a witness to be traced to obtain a precognition. An increase should not be granted to employ a private investigator in an adultery case without fairly detailed information about the circumstances in which the alleged adultery is taking place, including the address at which it is believed to be taking place and the likelihood of obtaining evidence. Any increase will cover obtaining a report from one enquiry agent only, unless it is shown that the court in which the action is to be raised will not accept the evidence of a single enquiry agent or there are other reasons for two agents to report. AA/GUIDE/B/5

25 WATCHING BRIEF An increase is sometimes sought by a solicitor to enable him/her to attend a trial or fatal accident inquiry on behalf of a client. Increases should only be authorised in rare and exceptional circumstances. Where these exist, the solicitor should tell us the extent of the attendance what level of experience the person attending will need (for example, whether they are a trainee or assistant). Solicitor AA/GUIDE/B/6

26 PART C TYPES OF CASE AA/GUIDE/C

27 BREACH OF PROBATION BREACH OF COMMUNITY SERVICE BREACH OF SUPERVISED ATTENDANCE ORDERS ABWOR is available for representation at hearings involving breach of probation, breach of community service and breach of supervised attendance orders. In these cases, an applicant will have been found guilty of a charge and, rather than receiving a custodial sentence, he will have been placed, for example, on probation or ordered to undertake community service. Where the applicant does not adhere to the order imposed by the court, he will be called back to court to allow the court to consider the breach. Board approval is not needed before undertaking work in relation to such breaches, up to the initial limit of authorised expenditure, 80. Increases may be given to cover any additional hearing, where the applicant admits the charge and the case is deferred if the applicant denies the charge, to cover representation at any proof. An increase to 400 should normally be sufficient if the case is being heard in the lower courts but more can be made available if the matter is being heard in the High Court. AA/GUIDE/C/1

28 CAVEATS The work of preparing and lodging a caveat in court may be the subject of advice and assistance since it is a precautionary matter rather than a step in proceedings. A caveat is a legal document which is lodged in court by a party so that no order or ruling affecting him is made in his absence or without his receiving prior notice. Caveats may be lodged in the sheriff court or the Court of Session. Some requests may be made to seek to lodge in both courts or in several sheriff courts. A fee is payable when a caveat is lodged. The present fee in the Court of Session is 24, and 17 in the sheriff court. An increase will not normally be necessary. If you believe there are special circumstances in a particular request, refer it to a solicitor AA/GUIDE/C/2

29 CHILD ABDUCTION APPLICATIONS UNDER THE HAGUE CONVENTION A convention application means an application under the Hague Convention or the European Convention, dealing with international child abduction or the recognition and enforcement of international custody orders. Streamlined procedure Regulation 45 of the civil legal aid regulations puts in place streamlined procedures to deal with applications for legal aid made by a person resident outside the United Kingdom. The streamlined procedure applies only to those cases where the person is resident outwith the UK, wishes to pursue an action at first instance before the Court of Session, and Scottish Ministers certify the application as a convention application. It does not apply to an application for legal aid to defend such an action. Appeals If someone wishes to apply for legal aid to appeal to the Inner House of the Court of Session or the House of Lords, we do not need to consider the person s means and s/he does not need to pay a contribution. However, we do need to consider probable cause and reasonableness and it will be necessary to intimate the application to the opponent. For such an application for legal aid we need an application form signed by the applicant or the solicitor. a statement from the solicitor, as above, and a copy for each opponent. a copy of the Minister s certificate, if there was no application for legal aid at first instance. Again, this procedure does not apply to the person opposing the appeal just as it is not available to the defender at first instance. The procedure used to grant civil legal aid in convention cases is much simplified, but an increase to 300 or perhaps 400 if an agent has no information about the case (and that would be unlikely), is reasonable to enable the solicitor to apply for legal aid. There may be exceptional cases where more is requested, but these should always be referred to a solicitor. The streamlined procedure does not apply to an application for legal aid to defend an action under the Convention. The normal rules of dealing with increases and legal aid applications apply to these. AA/GUIDE/C/3

30 CHILD SUPPORT AGENCY CHILD SUPPORT ACT 1991 CHILD SUPPORT AGENCY Matters arising from an individual s involvement with the Child Support Agency may include advice on the individual s rights, form completion, checking maintenance assessments, giving advice on the consequences of not providing information to the agency and the setting of reduced benefit directions. In most cases, the initial 80 should be sufficient for the solicitor to deal with all of these. APPEAL PROCEDURES Decisions of the Child Support Officer may be reviewed and, if still disputed, referred to the Child Support Agency Tribunal. A further appeal can be made to the Child Support Commissioner, on a point of law only. Civil legal aid can be made available for such appeals. In certain circumstances, an appeal can be made to the Court of Session or the Court of Appeal. Civil legal aid can be made available for cases directed to the Court of Session, but not for the Court of Appeal. Suitable increases can be granted to advise on an appeal to the Commissioners and the Court of Session appeal. An increase may also be granted to lodge a civil legal aid application. Advice and assistance is not available to initiate such appeals but special urgency cover under Regulation 18 may be available. Increases must not be granted for cases directed to the Court of Appeal. ACTIONS OF ILLEGITIMACY OR NON-PARENTAGE An appeal can also be brought before the courts on the grounds of challenging parentage, where parentage becomes an issue after the raising of a maintenance assessment. Individuals raising actions of illegitimacy or non-parentage can apply for advice and assistance and full civil legal aid in the normal way. AA/GUIDE/C/4

31 CHILDREN S HEARINGS AND APPEALS CHILDREN (SCOTLAND) ACT 1995 PART II Compulsory measures of supervision (compulsory involvement of the Social Work Department) may be necessary in respect of a child if one or more of the conditions laid down in section 52(2) of the Children (Scotland) Act 1995 ( the 1995 Act ) applies - for example, if the child is beyond control, has committed an offence, or is a victim of a Schedule 1 (offences against children) offence. If one or more of the conditions apply and the Reporter to the Children s Panel concludes, after investigation, that the child requires compulsory measures of supervision then the Reporter refers the child to an initial children s hearing (also referred to as a grounds of referral hearing). The hearing itself consists of three lay panel members who make decisions in respect of compulsory measures of supervision. If this is deemed appropriate, the child is placed on a supervision requirement. Legal aid is not available for representation of a child and/or his parents/relevant persons by a solicitor at any children s hearing. The Children s Hearings (Legal Representation) (Scotland) Rules 2002 now allow for representation of a child at a children s hearing by a legally qualified safeguarder or curator in certain specified circumstances. The fees and related costs are met under a scheme funded by the Scottish Executive and operated by the local authority. Any application by safeguarders/curators for payment to prepare and attend children s hearings should therefore be rejected as we are not responsible for this funding. a) Initial children s hearing Prior to the hearing, the child (if old enough to understand) and any relevant person will be sent a copy of the grounds of referral (that is, reasons for referring a child to a hearing) and all the background reports that the panel members will also have. The initial limit of 80 should normally be sufficient to advise a client about the procedure at the hearing and to consider and explain the grounds of referral and background papers. There may however be cases where an increase to is justified, for example, where (i) (ii) (iii) (iv) there are lengthy, complex grounds of referral and background papers which may include medical reports; the particular child has difficulties understanding the process/reports; the particular relevant person has difficulties understanding the process/reports due to learning disability and/or physical/medical ailments; or the child and/or relevant person cannot attend at the solicitor s office and travel costs may be required. The solicitor would have to put forward substantial reasons such as the relevant person being in hospital or the child being in a secure unit for us to consider this. A/GUIDE/C/5

32 At the initial children s hearing, the grounds of referral are read out to the child (if old enough) and relevant person. If they are accepted by all parties and the hearing proceeds, then panel members decide if the child should be placed on a supervision requirement, either living at home or elsewhere. If the grounds are denied the hearing can be continued and the grounds can be referred to the sheriff court for proof. Legal aid is then available (if the applicant is eligible) to prepare and conduct the proof. In general, any increases in advice and assistance should not be granted for preparation for proof as legal aid is applied for to the sheriff and can be dealt with very quickly. Accordingly, all preparation work should be carried out under the legal aid certificate. The initial increase granted should be sufficient to complete the CHILD/APP form and increases should not be granted for this purpose. Assessment Officer b) Continued hearing remit hearing The legal aid certificate ends at the conclusion of the court proof. If the grounds are established in court then another hearing will take place to decide if the child should be put on a supervision requirement. As with the initial hearing the child and relevant person will be sent any additional reports/papers which are to be put before the hearing. Accordingly a further increase of 100 should be sufficient to peruse these papers with the client and advise accordingly. Assessment Officer c) Other hearings If a child is placed on a supervision requirement then this can be reviewed in various ways (i) (ii) (iii) (iv) annual reviews the supervision requirement can only last for a year and another hearing must take place to consider terminating or continuing it review at the request of child/relevant person they can apply for another hearing after three months from the last hearing decision date review at request of Social Work Department The SWD can apply for a review hearing at any time review at request of Panel members Panel members at the end of the hearing can state when they want another hearing. For the purposes of advice and assistance, these are considered to be fresh matters and the initial limit of 80 should normally be sufficient to advise clients of procedure and consider the background papers/reports. A/GUIDE/C/5

33 See a) initial hearings procedure for circumstances where an increase to may be justified. Assessment Officer d) Advice hearings 1. Criminal advice hearing Where the child pleads or is found guilty of an offence in the adult court system the sheriff can, in certain circumstances, request the advice of a children s hearing as to how the matter should be disposed of. As the child will probably have a criminal legal aid certificate or already be receiving ABWOR, separate advice and assistance may not be necessary for this. If the child is under 16 years of age and the relevant person has been cited (as opposed to invited) to attend the criminal advice hearing, the initial limit of 80 should normally be sufficient to advise the relevant person. Since this is an advice hearing only and there is no decision as such, it cannot be appealed against. 2. Adoption advice hearings Where the Social Work Department is intending to apply to court for direct placement adoption, freeing for adoption or for a parental responsibilities order and the child is subject to a supervision requirement, a hearing must take place in order for the Panel members to advise the sheriff on whether or not it should be granted. The initial limit of 80 should normally be sufficient to advise the client of procedure and consider the background papers/report. See under a) initial hearing procedure for circumstances where an increase to 200 to 300 may be justified. Since this is an advice hearing only, it cannot be appealed against. Assessment Officer e) Child protection orders and related hearings Section 57 of the 1995 Act lays down provision for emergency situations where a child is deemed to be at immediate risk and requires to be removed from the care of the relevant person a child protection order (CPO) is granted by a sheriff in court and a children s hearing to consider whether or not to continue the CPO must take place on the second working day of the date of the order granted. The initial limit of 80 should normally be sufficient to advise the client of procedure and consider background papers/reports. See under a)initial hearing procedure for circumstances where an increase to may be justified however, as this is an emergency hearing fixed at very short notice there are unlikely to be many background papers/reports and there are no grounds of referral. A/GUIDE/C/5

34 If the CPO is continued at the second working day hearing by Panel members, another hearing must take place on the eighth working day where grounds of referral will be put to the child and/or relevant person. An increase of 100 should be sufficient to advise clients of procedure, go through the grounds of referral and consider any background papers/reports. s for dealing with increases for the eighth working day hearing are the same as for the initial hearing see a). Assessment Officer f) Appeals against decisions of children s hearing Once a final decision is made regarding a supervision requirement (i.e. to place a child on one, continue or vary it) the child and/or relevant person have 21 days to consider whether they wish to appeal the decision to the sheriff. The panel members will issue written reasons for their decision. A further increase of 100 should be sufficient to consider the written reasons, discuss the terms of any appeal with the client and submit the note of appeal and application for children s legal aid to the sheriff if the client so requests. If the client appeals against the decision of the children s hearing, legal aid is then available (if s/he is eligible) to prepare and conduct the appeal. Increases in advice and assistance should, in general, not be granted for preparation of the appeal as legal aid is applied for to the sheriff and can be dealt with very quickly. Accordingly, all preparation work should normally be carried out under the legal aid certificate. Assessment Officer g) Appeals to the Sheriff Principal or Court of Session If the child wishes to appeal a decision of the sheriff, s/he can do so by appealing to the Sheriff Principal or the Court of Session applications for legal aid for this are made to the Board and not to the sheriff. An increase of 300 should normally be sufficient to prepare and submit a legal aid application for this purpose any increase request for preparatory work for the appeal should normally be refused as the work should not normally be undertaken until a grant of legal aid is made. In certain circumstances, however, solicitors can apply to the Board for legal aid as a matter of special urgency before the full application is determined. Assessment Officer A/GUIDE/C/5

35 CIVIL LEGAL AID APPLICATIONS APPROPRIATE INCREASE FOR LODGING You may grant an increase to 400 to enable the solicitor to complete and submit a civil legal aid application. If the solicitor gives good reasons, a further increase may be authorised. Where such a request is made at a later stage, after initial instructions, statements etc have been taken, a lesser increase may be considered appropriate simply to make the application. A/GUIDE/C/6

36 CONVEYANCING The term conveyancing relates to the legal formalities surrounding the transfer of title to property. For cases concerning the transfer of the matrimonial home between spouses or cohabitees on separation or divorce, where no payment is changing hands, you should refer to AA/GUIDE/C/7/2. Before agreeing to the use public funds for conveyancing, we must be persuaded that there is a good reason to do so. Where an applicant is entering a voluntary transaction for the purchase or sale of heritable property, this is unlikely. Applicants should generally be expected to take the cost of conveyancing into account before deciding to proceed with an entirely voluntary transaction. There are, however, circumstances where it would, in general, be considered appropriate to grant an increase Where the conveyance is for the transfer from one spouse to another of the matrimonial home on separation or divorce and no payment in respect of the transfer is changing hands. (See AA/GUIDE/C/7/2.) Where the conveyance is for the transfer from one cohabitee to another of the former home following the breakdown of the relationship and no payment in respect of the transfer is changing hands. (See AA/GUIDE/C/7/2.) To allow an applicant to complete title to heritable property following the death of a spouse. To allow the transfer of property on the death of a spouse. Where the applicant is in severe financial difficulties and has to sell heritable property, but is unable to meet the costs from any other source. In this situation, if a bank or building society has already commenced proceedings for the sale, it would not normally be reasonable to grant an increase unless a good case is put forward to show that the applicant is likely to suffer severe financial disadvantage as a result of the way in which the security holder will carry out the sale as compared to the situation if the applicant disposes of the property the applicant benefits in some way rather than the creditor(s) if it is only the creditor(s) who will benefit, it would generally be more reasonable for them to pay the expenses rather than public funds. Where the transaction is not voluntary. Sometimes, a block of property is being improved and an applicant has to contribute and instruct a solicitor to prepare loan documentation that would otherwise not be necessary. Where work is required in connection with the Board taking security over the applicant s property, arising from a situation where property has been recovered or preserved in civil proceedings. Where an increase is to be allowed to cover conveyancing costs, the following may be included any work to be carried out in respect of the preparation of the disposition, security documents and any assignation of a policy or policies AA/GUIDE/C/7/1

37 other expenses normally incurred in a conveyancing transaction including registration dues, search fees and the cost of obtaining local authority reports where necessary any outlays, in full, (other than those specifically excluded below) which can be met under advice and assistance the solicitor s fees in undertaking the conveyancing work. A solicitor is not entitled to charge normal private rates for the conveyancing but must charge at advice and assistance rates. An appropriate increase for the solicitor s element of the work would range from 300 to 450, in addition to the costs of expenses and outlays, depending on the work envisaged. Solicitors should provide specific details of these costs, having regard to the charges made by local authorities and searchers and taking into account the dues of registration which will be payable in respect of the property involved. If a solicitor does not provide a breakdown of the likely costs in the individual situation, then the request may be continued for this information to be provided. Certain expenses are specifically excluded: Third party expenses. A co-owner may be agreeable to the sale of a property on the basis that his/her conveyancing expenses are met. This is not a proper charge on the Fund. Payment of a solicitor s or estate agent s sale commission. Stamp duty. Advertising costs and surveyor s fees. If these form part of any request for an increase, they must be refused. If you are granting a request for an increase for conveyancing, ensure that you specifically refer to the exclusion of any third party expenses, commissions, stamp duty, advertising costs and surveyor s fees if these are mentioned. AA/GUIDE/C/7/1

38 CONVEYANCING TRANSFER OF MATRIMONIAL HOME BETWEEN SPOUSES OR COHABITEES ON SEPARATION OR DIVORCE The term conveyancing relates to the legal formalities surrounding the transfer of title to property. The vast majority of requests arise where property is to be transferred from one spouse or cohabitee to another. These conveyancing costs can be met under advice and assistance if it is likely to prevent subsequent litigation. If, for example, the relationship between spouses breaks down, meeting the conveyancing costs may avoid subsequent lengthy divorce litigation. In situations involving cohabitees, it may avoid further litigation if an amicable arrangement can be entered into for the transfer of property. This Guideline refers only to cases concerning the transfer of the former home between spouses or cohabitees on separation or divorce. For all other cases, including transfers between spouses or cohabitees where payment is being made, you should refer to AA/GUIDE/C/7/1. Before agreeing to the use public funds for conveyancing, we must be persuaded that there is a good reason to do so. However, it is generally reasonable to grant an increase where the conveyance is for the transfer from one spouse to another of the matrimonial home on separation or divorce and no payment in respect of the transfer is changing hands where the conveyance is for the transfer from one cohabitee to another of the former home following the breakdown of the relationship and no payment in respect of the transfer is changing hands. In each request we need information not only about the conveyancing costs which are to be incurred but also about the settlement or agreement to be entered into, including the value of the house the payment (if any) which is to be made for the transfer of the house the amount of any mortgage whether the building society/bank is prepared to accept the applicant as solely liable for the mortgage whether the applicant can maintain the mortgage payments whether the house is to be retained for the foreseeable future. This information is needed to try and establish the background to the transfer of the property before reaching any decision about whether or not to grant the increase. An appropriate level of increase will cover any outlays, in full, (other than those specifically excluded below) which can be met under advice and assistance any work to be carried out in respect of the preparation of the disposition, security documents and any assignation of a policy or policies AA/GUIDE/C/7/2

39 other expenses normally incurred in a conveyancing transaction including registration dues, search fees and the cost of obtaining local authority reports where necessary the solicitor s fees in undertaking the conveyancing work a solicitor is not entitled to charge normal private rates for the conveyancing but must charge at advice and assistance rates. An appropriate increase for the solicitor s element of the work would be 300 to 450 depending on the work envisaged. Solicitors should provide specific details of these costs, having regard to the charges made by local authorities and searchers and taking into account the dues of registration which will be payable in respect of the property involved. If a solicitor does not provide a breakdown of the likely costs in the individual situation, then the request may be continued for this information to be provided. Certain expenses are specifically excluded: Stamp duty is not payable in transfers between spouses but is chargeable in transfers between cohabitees. You should, therefore, not see any request for stamp duty where the transfer is between spouses. Any request for an increase to pay stamp duty should be refused. If you are granting a request for an increase for conveyancing between cohabitees ensure that you specifically refer to the exclusion of stamp duty. If a request is received for an increase to cover any third party costs not specifically referred to in this guideline, clarification should be sought from the applicant s solicitor. If you are in doubt, refer to a solicitor. Payments being made by the applicant In cases where the applicant is making a payment in respect of the transfer, in addition to the information shown above we need to know why the conveyancing costs should be met by public funds where an applicant is able to make a payment for the transfer whether the payment is being made by a third party who could also meet the conveyancing costs whether the payment is being funded by a mortgage or additional mortgage that can be extended to include conveyancing costs. In assessing whether it is reasonable to grant an increase, you should consider whether it is likely that any additional funding might be made available having regard to the personal circumstances of the applicant and their need to continue to live in the matrimonial home. Costs of the person transferring the property You may also receive applications for an increase to cover the costs of the person transferring the property. These costs are much more limited than the costs incurred by the person receiving the transfer. We need to know whether a payment is being received for the transfer the payment is sufficient to cover the conveyancing costs the payment is earmarked for settlement of matrimonial debts that will exhaust it the transfer is necessary to implement an agreement reached and avoid costly litigation. AA/GUIDE/C/7/2