The Advice and Assistance and Civil Legal Aid (Transfer of Tribunal Functions) (No. 1) (Scotland) Regulations 2010

EXPLANATORY NOTE

(This note is not part of the Regulations)

These Regulations, together with the Advice and Assistance and Civil Legal Aid (Transfer of Tribunal Functions) (No. 2) (Scotland) Regulations 2010 (“the (No. 2) Regulations”) amend advice and assistance and civil legal aid legislation in consequence of the transfer of tribunal functions to the First-tier Tribunal and the Upper Tribunal established under the Tribunals, Courts and Enforcement Act 2007(1).

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 4 replaces references to the Child Support Commissioners in the Civil Legal Aid (Scotland) (Fees) Regulations 1989 with references to the Upper Tribunal. The Child Support Commissioners were abolished by virtue of the Transfer of Tribunal Functions Order 2008(2). By virtue of the (No. 2) Regulations, civil legal aid is to be made available for judicial review proceedings before the Upper Tribunal. It is therefore necessary for the Civil Legal Aid (Scotland) (Fees) Regulations 1989 to make provision for the fees and outlays allowable to solicitors and counsel in relation to proceedings before the Upper Tribunal.

Regulation 5(a) removes from the Advice and Assistance (Scotland) Regulations 1996 a reference to the Child Support Commissioners. Regulation 6 removes from the Civil Legal Aid (Scotland) Regulations 2002 references to the Child Support Commissioners and a reference to the Asylum and Immigration Tribunal. Those amendments are made in consequence of the abolition of the Child Support Commissioners and, by virtue of the Transfer of Functions of the Asylum and Immigration Tribunal Order 2010(3), the abolition of the Asylum and Immigration Tribunal.

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.

(1)

2007 c.15.

(2)

S.I. 2008/2833.

(3)

S.I. 2010/21.