The Advice and Assistance (Scotland) (Consolidation and Amendment) Regulations 1996

Payment of fees and outlays from property recovered or preserved S

16.—(1) In this regulation, unless the context otherwise requires, any reference to a numbered section is to a section bearing that number in the 1992 Act.

(2) The right to prior payment of fees or outlays out of any property recovered or preserved which is created by section 12(3)(c) of the Act shall not apply–

(a) to any money paid–

(i) under a decree following on an action for aliment within the meaning of the Family Law (Scotland) Act 1985 M1 ;

(ii) under an order for the payment of a periodical allowance under section 5 of the Divorce (Scotland) Act 1976 M2 , or for the making of a periodical allowance under section 8 of the Family Law (Scotland) Act 1985;

(iii) under any order for the periodical payment of sums for the maintenance of any person which, by virtue of the Maintenance Orders Act 1950 M3 , the Maintenance Orders (Reciprocal Enforcement) Act 1972 M4 or the Civil Jurisdiction and Judgments Act 1982 M5 , may be enforced in Scotland;

(iv) under an order made by the Employment Appeal Tribunal established under section 87 of the Employment Protection Act 1975 M6 or under any settlement arrived at to prevent or bring to an end proceedings in which such an order may be made;

(v) by way of income support, family credit or disability working allowance under section 124, 128 or 129 of the 1992 Act M7 or an income-based jobseeker’s allowance within the meaning of section 1(4) of the Jobseekers Act 1995 M8 but excluding any sums treated as payable by way of a jobseeker’s allowance by virtue of section 26 of that Act;

(vi) by way of aliment or periodical allowance or periodical payment of sums by virtue of any settlement arrived at to prevent or bring to an end proceedings in which such a decree or order as is mentioned in sub-paragraphs (i) to (iii) above may be granted;

(vii) by way of any payment made out of the social fund under section 138;

(viii) by way of any housing benefit under section 130 M9 ;

(ix) by way of child support maintenance under the Child Support Act 1991 M10 ;

(b) to the first £2,500 of any money, or of the value of any property, recovered or preserved by virtue of–

(i) an order for the payment of a capital sum under section 5 of the Divorce (Scotland) Act 1976;

(ii) an order for payment of a capital sum or transfer of property, or an incidental order, under section 8 of the Family Law (Scotland) Act 1985 M11 ;

(iii) any settlement arrived at to prevent or bring to an end proceedings in which such an order may be granted;

(c) to statutory sickness benefit under sections 151 to 163 M12 , incapacity benefit under section 30A(1) M13 , retirement pension under sections 43 to 55 M14 , statutory maternity pay under section 164 M15 , benefits for widows and widowers under sections 36 to 42 M16 , a child’s special allowance under section 56, attendance allowance under section 64, invalid care allowance under section 70 M17 , the mobility component of a disability living allowance under section 71, guardians allowance under section 77, industrial death benefit under paragraphs 14 to 21 of Schedule 7 to the 1992 Act or a contribution- based jobseeker’s allowance within the meaning of section 1(4) of the Jobseekers Act 1995, but excluding any sums treated as payable by way of a jobseeker’s allowance by virtue of section 26 of that Act;

(d) to child benefit paid under section 141;

(e) to allowances and benefits for industrial injuries paid under sections 94 to 111;

(f) to one-half of any redundancy payment within the meaning of Part XI of the Employment Rights Act 1996 M18 recovered or preserved for the client;

(g) to any payment of money in accordance with an order made under section 21 of the Industrial Tribunals Act 1996 M19 by the Employment Appeal Tribunal;

(h) to any dwelling, household furniture or tools of trade recovered or preserved for the client as a result of advice and assistance given to him by the solicitor.

(3) The Board may authorise that the requirement created by section 12(3)(c) of the Act that, before recourse to the Fund, fees or outlays shall be paid to the solicitor out of any property which is recovered or preserved for the client shall not apply in relation to the whole or any part of any such property in any case where on application by the solicitor the Board are satisfied that–

(a) payment out of the property to which the requirement would otherwise apply would cause grave hardship or distress to the client; or

(b) (i) the solicitor has taken all reasonable steps to obtain payment out of the property to which the requirement would otherwise apply; and

(ii) payment to the solicitor out of that property could only be effected with unreasonable difficulty or after unreasonable delay.

Marginal Citations

M1 1985 c.37.

M2 1976 c.39; section 5 was repealed on 1st September 1986 by the Family Law (Scotland) Act 1985, Schedule 2, subject to a saving in section 28(3) of that Act.

M3 1950 c.37.

M4 1972 c.18.

M5 1982 c.27.

M6 1975 c.71.

M7 Section 124 was amended by the Jobseekers Act 1995 (c.18) (“the 1995 Act"), Schedule 2, paragraph 30 and repealed in part by Schedule 3 to that Act; section 128 was amended by the 1995 Act, Schedule 2, paragraph 33; section 129 was amended by the Local Government Finance Act 1992 (c.14), Schedule 9, paragraph 2, by the Social Security (Incapacity for Work) Act 1994 (c.18), section 10 and Schedule 1, paragraph 32 and by the 1995 Act, Schedule 2, paragraph 33.

M8 1995 c.18.

M9 Section 130 was amended by the Local Government Finance Act 1992, Schedule 9, paragraph 3 and by the Local Government etc. (Scotland) Act 1994 (c.39), Schedule 13, paragraph 174(4).

M10 1991 c.48.

M11 Section 8 was amended by the Law Reform (Miscellaneous Provisions) (Scotland) Act 1990 (c.40), Schedule 8, paragraph 34 and by the Pensions Act 1995 (c.26), section 167.

M12 Section 151 was amended by the Social Security (Incapacity for Work) Act 1994 (c.18) (“the 1994 Act"), Schedule 1, paragraph 34; section 157 was amended by the 1994 Act, section 8 and by S.I. 1993/350, 1994/542, 1995/559 and 562; section 158 was amended by the 1994 Act, section 8 and repealed in part by the Statutory Sick Pay Act 1994 (c.2) (“the SSP Act"), section 1; section 159A was inserted by the SSP Act, section 3; and section 163 was amended by the 1994 Act, Schedule 1, paragraph 35 and repealed in part by the 1994 Act, Schedule 2 and the Jobseekers Act 1995 (c.18), Schedule 3.

M13 Section 30A was inserted by the Social Security (Incapacity for Work) Act 1994 (c.18), section 1 and came into force on 13 April 1995 by virtue of S.I. 1994/2926.

M14 Section 44 was amended by the Pension Schemes Act 1993 (c.48) (“the 1993 Act"), Schedule 8, paragraph 38, by the Social Security (Incapacity for Work) Act 1994 (c.18) (“the 1994 Act"), Schedule 1, paragraph 11 and by the Pensions Act 1995 (c.26) (“the 1995 Act"), section 128; section 45A was inserted by the 1995 Act, section 127; section 46 was amended by the 1994 Act, Schedule 1, paragraph 12 and by the 1995 Act, Schedule 4, paragraph 21(5) and was repealed in part by the 1994 Act, Schedule 2; section 47 was amended by the 1993 Act, Schedule 8, paragraph 39, by the 1994 Act, Schedule 1, paragraph 13 and by S.I. 1995/559; sections 49 and 50 were substituted by the 1995 Act, Schedule 4, paragraph 3; section 51A was inserted by the 1995 Act, Schedule 4, paragraph 21(6); section 53 was repealed by the 1995 Act, Schedules 4 and 7; and section 54 was amended by the 1995 Act, section 134 and Schedule 4, paragraph 6 and repealed in part by the 1995 Act, Schedule 7.

M15 Section 164 was repealed in part by S.I. 1994/1230.

M16 Sections 40 to 42 were substituted by the Social Security (Incapacity for Work) Act 1994 (c.18), Schedule 1, paragraphs 8, 9 and 10.

M17 Section 70 was amended and repealed in part by S.I. 1994/2556.

M18 1996 c.18.

M19 1996 c.17.