The Advice and Assistance and Civil Legal Aid (Transfer of Tribunal Functions) (No. 1) (Scotland) Regulations 2010
Citation and commencement1.
These Regulations may be cited as the Advice and Assistance and Civil Legal Aid (Transfer of Tribunal Functions) (No. 1) (Scotland) Regulations 2010 and come into force on 9th June 2010.
Application2.
The following regulations apply only in relation to proceedings in relation to which civil legal aid or assistance by way of representation was made available on or after 9th June 2010.
Withholding payment in First-tier Tribunal and Upper Tribunal proceedings3.
(1)
Paragraphs (2) and (3) apply where, under the Legal Aid (Scotland) Act 1986—
(a)
assistance by way of representation has been provided in relation to proceedings before the First-tier Tribunal or the Upper Tribunal; and
(b)
the Board finds that the provision—
(i)
was not (wholly or partly) in accordance with the relevant rules applying by virtue of that Act; or
(ii)
was otherwise unjustified in the circumstances of the case (including by reason of inadequate assessment or verification of any relevant factor).
(2)
In considering whether or not the provision was in accordance with those rules, the Board may have regard to any relevant guidance it has issued in relation to their application.
(3)
The Board may—
(a)
withhold (wholly) payment from the Fund in respect of the provision; or
(b)
if such payment has been made, fully recover it.
Amendment of the Civil Legal Aid (Scotland) (Fees) Regulations 19894.
Amendment of the Advice and Assistance (Scotland) Regulations 19965.
(a)
in sub-paragraph (l), omit “the Child Support Commissioners or”; and
(b)
“(m)
to any payment of money in accordance with an order made by the Upper Tribunal in relation to proceedings described in regulation 5A(d) of the Advice and Assistance (Assistance by Way of Representation) (Scotland) Regulations 20034 or under any settlement arrived at to prevent or bring to an end proceedings in which such an order may be made.”.
Amendment of the Civil Legal Aid (Scotland) Regulations 20026.
(1)
(2)
In regulation 4(1)(k) omit “and the Child Support Commissioners”.
(3)
Omit regulation 18(2)(w).
(4)
In regulation 21(1)(c) for “Child Support Commissioners” substitute “Upper Tribunal”.
(5)
In regulation 33(a)(xi) omit “the Child Support Commissioners or”.
(6)
In regulation 47—
(a)
in the heading to that regulation omit “and Child Support Commissioners”; and
(b)
omit “or the Child Support Commissioners”.
St Andrew’s House,
Edinburgh
Regulation 3 provides for payments to be recovered or withheld by the Scottish Legal Aid Board where it finds that a solicitor providing assistance by way of representation in relation to proceedings before the First-tier Tribunal or the Upper Tribunal has not correctly applied the relevant tests for eligibility.
Regulation 5(b) amends the Advice and Assistance (Scotland) Regulations 1996 to provide that a solicitor’s right to prior payment of fees and outlays out of any property recovered or preserved for the client in respect of advice and assistance does not apply to any money paid in connection with proceedings described in regulation 5A(d) of the Advice and Assistance (Assistance by Way of Representation) (Scotland) Regulations 2003. Before the Transfer of Tribunal Functions Order 2008 came into force, those proceedings would have been conducted before the Social Security Commissioners or the Child Support Commissioners. Any money paid in connection with proceedings before the Commissioners was excepted from the solicitor’s right to prior payment.
Regulation 6(4) replaces the reference to the Child Support Commissioners in regulation 21(1)(c) of the Civil Legal Aid (Scotland) Regulations 2002 with a reference to the Upper Tribunal. The Scottish Legal Aid Board’s prior approval will therefore ordinarily be required for the employment of counsel in proceedings before the Upper Tribunal for which civil legal aid has been made available.