The Children’s Legal Assistance (Scotland) Regulations 2013

Matters of special urgency

18.—(1) The Board may make children’s legal aid available for specially urgent work undertaken before an application for children’s legal aid is determined, if—

(a) it appears to the Board that it is reasonable in the particular circumstances of the case that the applicant should receive children’s legal aid; and

(b) the Board is satisfied on application that participation in proceedings is required as a matter of special urgency to protect the applicant’s position.

(2) This paragraph applies where—

(a) at the time the Board receives an application under paragraph (1)—

(i) an application for children’s legal aid by the applicant in relation to the same proceedings has been refused or treated as abandoned; or

(ii) the Board has ceased to make children’s legal aid in respect of the same proceedings available to the applicant;

(b) the Board has given the applicant an opportunity to show that there is a realistic prospect that children’s legal aid will be granted following an application for review or a further application; and

(c) the Board is not satisfied that the applicant has so shown.

(3) This paragraph applies where—

(a) the Board, on receipt of an application under paragraph (1), has called on the applicant to provide the Board with sufficient information to enable the Board to determine whether the conditions mentioned in Part 5A of the Act or regulation 5 are met;

(b) the Board is satisfied either—

(i) that the applicant has had sufficient opportunity to provide the information called for; or

(ii) that the applicant would have had sufficient opportunity to provide the information called for but for the undue delay on the part of the solicitor in submitting the application under paragraph (1); and

(c) the Board is not satisfied that the conditions mentioned in Part 5A of the Act or regulation 5 are met.

(4) Where the Board is satisfied in accordance with paragraph (1) that participation in proceedings is required as a matter of special urgency to protect the applicant’s position and that paragraphs (2) and (3) do not apply—

(a) the Board must so certify and may specify that the participation be limited to such work, or such purposes, or such period, or be subject to such conditions, all as it considers appropriate in the circumstances; and

(b) the solicitor must, if an application for children’s legal aid has not already been submitted, submit an application for legal aid within 28 days of commencement of the urgent work and failure to do so excludes that work from any legal aid that may be made available.

(5) Where work is carried out by a solicitor in the circumstances described in paragraph (1)—

(a) section 28K of the Act (contributions to the Fund) is modified so that—

(i) a legally assisted person for the purposes of that section includes a person for whom such work is carried out; and

(ii) the requirements of that section apply in respect of specially urgent work undertaken before an application for children’s legal aid made in terms of the Act is determined; and

(b) regulation 21 (prior approval of the Board required for employment of counsel etc.) is modified so that a person in receipt of children’s legal aid for the purposes of those regulations includes a person for whom such work is carried out.

(6) Where work is carried out by a solicitor in the circumstances described in paragraph (1) and an application for children’s legal aid made is subsequently refused, section 4(2)(a) of the Act(1) is modified so that there is to be paid out of the Fund—

(a) where the Board is satisfied as to the factors in paragraph (7), payments to meet such sums as the Board approves; or

(b) where the Board is not satisfied as to the factors in paragraph (7), any contribution paid by a person for whom a solicitor has undertaken specially urgent work.

(7) The factors referred to in paragraph (6) are that the Board is satisfied that—

(a) the solicitor had reasonable grounds for believing, on the information available at the time the work was done, that the applicant would be eligible for children’s legal aid in terms of the Act; and

(b) the work was actually, necessarily and reasonably done, due regard being had to economy.

(1)

Relevant amendments to section 4 were made by section 44 and paragraph 1(a) of Schedule 4 to the Legal Aid Act 1988 (c.34); section 62(1) and paragraph 12(2)(a) of Schedule 1 to the Crime and Punishment (Scotland) Act 1997 (c.48); and sections 67 and 68 of the Legal Profession and Legal Aid (Scotland) Act 2007 (asp 5).