Legal system - In Scotland

This information applies to Scotland

The Scottish Legal Aid Board have identified problems with the way in which some civil legal aid claims were handled between 1991 and 1999. This only applies to a person who received advice and assistance and civil legal aid in relation to the same legal case. Further information can be obtained from the Scottish Legal Aid Board on 0131 240 2072.

Advice and assistance

The advice and assistance scheme allows people on low incomes to get free legal advice and assistance from a solicitor.

Who can apply for advice and assistance

Anyone aged 16 or over can apply for advice and assistance. A young person under 16 can apply for advice and assistance in her/his own right if s/he has ‘sufficient understanding’. If s/he is very young or does not have sufficient understanding, the child’s parent or guardian can apply on her/his behalf.

What does the scheme cover

The scheme will not pay for representation by a solicitor in court or at a tribunal, although a solicitor can help you prepare the case and negotiate settlement of a claim in such proceedings.

Other areas which the scheme covers are general advice on any legal problems, writing letters, negotiating, getting an advocate’s opinion, and getting a medical report for an accident claim or a benefit appeal.

Legal problems covered by the scheme

The advice and assistance scheme covers advice on general legal problems, included on a case category list, including advice on the following:-

• divorce, dissolution of a civil partnership, maintenance or disputes about children
• contested adoptions
• preparing for tribunals, for example, unfair dismissal and social security tribunals
• preparation before some criminal proceedings
• making a will
• accident claims, including giving advice, preparing a case for criminal injuries compensation, getting medical reports.

If the legal problem that you have is not on the case categories list a solicitor can offer you a diagnostic interview or other piece of legal work up to a maximum cost of £35. If the solicitor identifies a significant issue that is on the case categories list in the course of this initial work you can then apply for full advice and assistance if you are eligible financially.  You can check what is on the case categories list at the Appendix to this document.

How much work is covered by the scheme

The full advice and assistance scheme allows the solicitor to do only a fairly small amount of work.

If the work done by a solicitor has already reached the limit set by the scheme, s/he can apply for an extension to finish the work. The solicitor cannot carry out any further work on the case until the extension is granted. If this is refused, it is up to you to decide whether you wish to pay for further work.

A solicitor cannot normally represent you in court or at a tribunal under the advice and assistance scheme, except in certain limited circumstances which are covered by Assistance by Way of Representation (ABWOR). Your solicitor will be able to advise you when ABWOR is possible.

If the matter can be resolved only by court proceedings, and the case cannot be covered by ABWOR, the solicitor may suggest that you apply for civil legal aid (see under heading Civil legal aid) or criminal legal aid (see under heading Legal aid for criminal proceedings).

What are the financial conditions for the scheme

Both capital and income are taken into account when determining eligibility.

Savings

If you have savings over £1,561 you will not be eligible for advice and assistance. This is the limit if you have no dependants.

If you have dependant relatives (partner - including a same sex partner, child, or other relatives) there are allowances that can be deducted from the total capital.

If you are over state pension age the allowance is higher.

Income

If you are getting income support or income-based jobseeker’s allowance, you will be eligible for free legal advice and assistance, unless you have savings over the limit.

If you are not getting income support or income-based jobseeker’s allowance, your eligibility for advice and assistance will depend on your income.

If you are married, in a civil partnership or cohabiting (same sex or opposite sex), your partner’s income and savings will also be taken into account unless you live apart and are financially separate or there is a conflict of interest between you (for example in a case of divorce or dissolution or a dispute about children), or it would be inequitable or impracticable to do so.

If the applicant is a child, s/he will be assessed on her/his own income and savings, and not that of her/his parents.

Your income is worked out by adding up all your actual income from the last seven days and deducting from it tax and National Insurance, maintenance payments made by you for the last seven days and the following allowances:-

What is left is your disposable weekly income. You will qualify for advice and assistance if the disposable weekly income is not more than:

You may have to pay a contribution if the disposable weekly income is more than:-

Extra costs the person may have to pay

If you are awarded money or property as a result of the legal advice or assistance, or money or property is saved by the solicitor's intervention, you have to pay the solicitor’s costs from this first. In some cases the solicitor’s costs will not be taken out of the award, for example, if the money is maintenance payments or state benefits. You should check with the solicitor whether costs could be taken from any money or property you might get, before deciding whether to pursue the case.

You can get a copy of a leaflet about whether or not you qualify at www.slab.org.uk/getting_legal_help/pdf/guide_civil_2008.pdf.

How to apply

You must complete an application form for advice and assistance. The form asks for details of savings and income over the previous seven days. The solicitor should help you fill in the form and will say immediately whether you are eligible for help under advice and assistance; and if so, whether you have to make a financial contribution. There are forms available at www.slab.org.uk/profession/eForms/index.htm

The solicitor will ask to see evidence of income and savings. When you go to see the solicitor you should take along any benefit books or letters of award, wage slips, bank or building society statements or any other written evidence of income and savings.

For further information about advice and assistance you should consult an experienced adviser for example, at a Citizens Advice Bureau. To search for details of your nearest CAB, including those that can give advice by email, click on nearest CAB.

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Civil legal aid

Civil legal aid is a scheme to help pay for representation by a solicitor or an advocate in the civil courts. Civil legal aid is means-tested. Depending on your income and savings legal advice may be free, or you may have to make a contribution towards the cost. Getting civil legal aid also depends on whether the Scottish Legal Aid Board agrees that it is reasonable to go to court to pursue or to defend the case.

Which courts are covered by civil legal aid

In Scotland the most common courts which are covered are:-

• the Sheriff Court
• the Court of Session.

Legal aid also covers:-

• the Employment Appeals Tribunal
• Land Tribunals for Scotland
• Scottish Land Court
• appeals to the House of Lords.

Legal aid does not cover representation at most tribunals or for small claims in the sheriff court. However, you can qualify for help with the legal costs of preparing a case under the advice and assistance scheme (see under heading Advice and assistance).

Civil legal aid does not cover representation at children’s hearings. However a parent or a child can apply for a special form of legal aid for representation at an appeal from a children’s hearing. A solicitor should advise you about how to apply.

Which cases are covered by civil legal aid

Examples of cases covered by civil legal aid are cases concerning:-

• road or work accidents - compensation for injuries, damage to vehicle and other losses
• housing problems - such as eviction, repairs, rent arrears
• debts - to recover debts (over £3000) by going to court
• consumer problems - compensation for faulty goods or services
• divorce, dissolution of civil partnerships and disputes about children.

How to qualify for civil legal aid

The Scottish Legal Aid Board must agree that someone has a reasonable case before it will agree to providing civil legal aid. For example, it might not agree that it is reasonable to sue a company with no money or assets.

Financial conditions

Your disposable income and savings must be below certain limits. Disposable income is the amount of income you have left after deductions have been made for national insurance and tax, rent, council tax, other necessary expenses and dependants’ allowances.

The income and savings of a spouse, civil partner or cohabitee (same sex or opposite sex) will be taken into account when working this out unless you live apart and are financially separate or there is a conflict of interest between you (for example in a case of divorce or dissolution or a dispute about children).

If the applicant is a child, s/he will be assessed on her/his own income and savings, and not that of her/his parents.

If you are on income support or income-based jobseeker’s allowance you will automatically be eligible for civil legal aid on both income and savings grounds.

From 2 April 2001, if you have powers under the Adults with Incapacity (Scotland) Act relating to the property, financial affairs or personal welfare of a person with incapacity, and the application for civil legal aid relates to proceedings under the Act, it will be the income and capital of the person with incapacity that will be assessed to determine eligibility. Your personal resources will be disregarded.

Your disposable income

The amount of disposable income you have will determine whether or not you are eligible for civil legal aid. It is possible that, although you do qualify for civil legal aid, you will have to pay a contribution.

Your savings

Your savings should be not more than the following amount, however there is some discretion:-

If your savings are below this figure but above £7,147 you will have to pay something from savings towards the legal costs. If the savings are below £7,147 you will not have to pay anything from the savings.

If you are over pension age (60 for both women and men) there is an additional savings allowance. The amount of savings disregarded ranges from £5,000 - £35,000, depending on your annual disposable income.

Extra costs you might have to pay

If you win your court case, and are awarded money or property as a result, you may have to use some or all of this money to pay the legal aid board for your legal costs.

Where there has been an award of judicial expenses to you it can be a complex situation and you should seek advice from an experienced adviser.

If you win the case, the other side may be ordered to pay your costs. If this happens you probably will not have to pay anything to the Scottish Legal Aid Board from your award.

In some cases costs are not taken from your award, for example, if the money is maintenance payments or state benefits. It is important for you to check this with the solicitor before applying for legal aid.

If you lose the case, you may be ordered to pay the legal costs of the other side if the court considers this would be reasonable. Legal aid would not cover this.

If your circumstances change during the period that you have been granted legal aid, for example because you get a job or inherit money, you should contact the legal aid board immediately as you may be asked to contribute more towards the case.

How to apply

You should apply through a solicitor who does legal aid work. You will have to fill out an application form, which includes details of your income and savings. The solicitor will then send the form to the Scottish Legal Aid Board. If legal aid is granted, the Scottish Legal Aid Board will tell you how much any contribution will be. Contributions are usually paid by instalments, over a period of 10, 15 or 20 months depending on the amount of contribution payable. If the contribution has to be paid out of savings, it is usually all paid immediately.

It is important to wait until civil legal aid has been awarded before asking the solicitor to do anything. The award cannot be backdated and it will not therefore cover the cost of any work done before it has been granted. In an emergency, a solicitor can ask for emergency legal aid, which can be used to cover the delay in granting the legal aid certificate.

For further information about civil legal aid, you should consult an experienced adviser for example, at a Citizens Advice Bureau. To search for details of your nearest CAB, including those that can give advice by email, click on nearest CAB.

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Legal aid for criminal proceedings

Legal aid is available for people charged with criminal offences to cover the cost of representation by solicitors or advocates, and for bail applications. Getting criminal legal aid depends mainly on whether it is ‘in the interests of justice’ that the defendant is legally represented.

Criminal legal aid also depends on the financial circumstances of the accused. It is assessed whether the expenses of the case would mean 'undue' hardship for the accused (or dependants).

Which cases does criminal legal aid cover

Criminal legal aid is usually granted in the following cases:-

• if the defendant is likely to go to prison if convicted or
• if the defendant is likely to lose her/his job if convicted or
• if the defendant cannot follow what is happening in the trial because of mental or physical disability or because s/he does not speak English as a first language or
• the defendant has been remanded in custody pending a trial or
• appeals against criminal court decisions.

Minor offences such as motoring offences are not usually eligible for legal aid.

How to apply

If you want to apply for criminal legal aid you must complete a form giving details of the charge, your finances and the solicitor who will be representing you.

You should get the help of a solicitor to complete the form. This could be a duty solicitor at the court, or your own solicitor. Depending on your financial circumstances, the advice and assistance scheme (see under heading Advice and assistance) can pay for initial advice from a solicitor, including help with filling in the form.

Public Defence Solicitors’ Office (PDSO)

There are Public Defence Solicitors’ Offices (PDSO) in Edinburgh, Glasgow and Inverness. Criminal public defence solicitors provide legal advice, assistance and representation to those eligible for advice and assistance (including ABWOR) and/or criminal legal aid.

The PDSO handles cases where people have been charged with certain criminal offences that are to be heard at a sheriff or district court.

For more information on help with legal costs including the PDSO you should consult an experienced adviser for example, at a Citizens Advice Bureau. To search for details of your nearest CAB, including those that can give advice by email, click on nearest CAB.

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Other sources of legal help

Depending on the nature of the matter someone may be able to get legal help from other sources. Some of these are listed below.

Trade unions

Trade unions may provide free legal representation for legal action regarding accidents at work or employment problems. Free union representation may be better than legal aid, since representation will usually be by a solicitor specialising in this type of work and the person will not have to make a financial contribution.

Motoring organisations

Motoring organisations, for example, AA or the RAC, may offer a cheap or free legal advisory service if the person is a member.

Legal expenses insurance

Some insurance companies offer policies which cover the expenses of certain legal matters, for example, consumer disputes, personal injuries, employment problems and motoring offences. Many policies will exclude certain kinds of legal expenses, for example, in matrimonial disputes, or may not meet the total cost of claims that are covered.

Free or fixed fee interviews

Some solicitors will give up to half an hour’s legal advice free or at a fixed rate. This can be useful if you want to get an idea of whether you have a case which is worth defending or pursuing. It doesn’t depend on income and is available to anyone if the solicitor offers the service.

Speculative fee agreements

If you do not qualify for legal aid you may be able to enter into a speculative fee agreement (no win no fee) with a solicitor. If you are legally-aided you cannot use this type of agreement. Speculative fee agreements are allowed in any kind of case but are most frequently used in personal injury cases.

If you win the case you will usually pay the solicitor’s fee plus a ‘success fee’.

If you lose the case you must usually pay only the other side’s legal costs and your own solicitor’s outlays. These outlays may include experts’ fees, accident report fees, official searches, travelling expenses. Although you will not have to pay the solicitor’s basic fee, the outlays can be very high.

If you want to use a speculative fee agreement you should sign a written agreement with the solicitor before the solicitor takes the case.

Specialist advisers

Qualified solicitors are not the only professionals who offer legal advice as part of their practice, although only solicitors are permitted to initiate court proceedings and to represent you in court. Accountants, for example, give advice on tax and company law, and banks may draw up wills or act as executors in estates (although they may charge more than solicitors do for these services).

Specialist organisations, such as housing advice centres or money advice units may be able to provide specialised legal advice.

Citizens Advice Bureaux or welfare rights workers may be able to provide representation at a tribunal or in a small claims court.

For details of local specialist advisers you should consult an experienced adviser for example, at a Citizens Advice Bureau. To search for details of your nearest CAB, including those that can give advice by email, click on nearest CAB.

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Appendix: Civil advice and assistance - list of case categories where full advice and assistance is appropriate

Family/Matrimonial Related

•Divorce
•Separation
•Variation
•Contact
•Aliment/Child Support Agency
•Residence
•Adoption (including Freeing Order for Adoption)
•Matrimonial Homes
•Child Abduction/Hague Convention applications
•Co-habitee rights under family law
•Civil Partnerships

Other Processes

•Interdict (including interdicts under Matrimonial Homes (Family Protection) (Scotland) Act 1981)
•Interdict (to include “other”, “matrimonial” and “protection from abuse” interdicts and including non-harassment orders)
•Reparation
•Breach of Contract
•Contempt of Court (including minutes for failure to obtemper)
•Fatal Accident Inquiry
•Judicial Review
•Reduction
•Declarator
•Bankruptcy/Petition by Debtor
•Implement
•Delivery
•Summary Application
•General Defence to any Action (i.e. where a client is in receipt of a writ)
•Criminal Injuries Compensation
•Agency
•Appeals to Courts and Tribunals
•Statutory Discrimination
•Restoration of driving licence
•Anti Social Behaviour Orders
•Sexual Offences prevention Orders
•Proceeds of crime

Executry Related

•Wills
•Executries

Housing Related

•Recovery of Heritable
•Property (including•Eviction and Mortgage•Rights Acts)
•Conveyancing
•Division and Sale
•Landlord and Tennant
•Heritable rights
•Homelessness

Children’s Related

•Parts I and III of the Children’s Scotland Act 1995

Social Welfare Related

•Immigration/Asylum
•Mental Health
•Adults with Incapacity
•Benefit Appeals/Reviews
•Employment
•Education
•Debt (where debts exceed £500, and the advice does not include debt rescheduling and repayment plans
•Community Care – assessment of need, eligibility/charging for services and direct payments.

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