Applying for approval before, during and after a grant of legal aid

In general you cannot get approval until a grant of legal aid is in place. However you can seek approval prior to a grant of legal aid in some circumstances if there is urgency to the work.

Depending upon the nature of the urgent work the steps in proceedings you need to carry out may or may not need our prior approval.

We can consider a request for approval if we have granted special urgency and the work for which you seek approval is related to the urgent steps in proceedings we have approved.

What do I need to do to apply for approval before a grant of legal aid?

In order to apply for approval prior to a grant of legal aid:

• You need to submit a CIV/SOL application so the system will accept your application for approval.
• You will also need corresponding special urgency cover – whether under regulation 18(1)(a) or (b) of the Civil Legal Aid (Scotland) Regulations 2002.
  • You can then submit your approval request once the appropriate cover for the urgent work is in place if sought under regulation 18(1)(a).
  • The application for special urgency cover and approval can be submitted at the same time if cover is sought under regulation 18(1)(b).
• Templates cannot be used prior to a grant of legal aid and a standard approval application is needed.
  • You need to set out details of the work you want to do.
  • Explain how it is connected with the urgent work which we have agreed.

The most common approval requests at the pre-legal aid stage are in family cases. This is usually when, at a child welfare hearing, the court has ordered the parties to attend mediation or supervised contact to take place. We also regularly receive requests for approval for unusually large expenditure when child welfare reports, which are to cost over £3000, have been ordered by the court. We can consider any approval request as long as you give an explanation to show that the work needs to be done in conjunction with urgent work which we have agreed.

What happens if approval was granted when I had special urgency cover but legal aid has now been refused?

Special urgency cover and any associated approvals, only remain effective while your legal aid application is under consideration. If we refuse the application then the cover ends.

• If you are going to ask us to review our decision you should submit a review application straight away to avoid a gap in cover
• If the application is refused after review, then you need to apply again for special urgency cover and approval under a fresh application.

When can I use an approval template?

We have a selection of templates for outlays related to using professionals as experts. They allow you to get an almost instant grant of sanction at the set amount. You will be able to check via Legal Aid Online to see whether there are any templates available for your case.

You can use the template requests:

• After legal aid is in place.
• The first time you seek sanction for expert evidence (so long as there is an applicable template available).

When can I not use a template?

• You cannot use templates to seek retrospective approval.
• You cannot use them if you have previously sought approval for the same type of expert (even if it has been refused).

What should I do if there is not a template available?

If you cannot find a suitable template or your expert wants to charge more than the amount set in a template you need to ask for approval in the normal way through Legal Aid Online.

How do I apply for approval in linked cases?

If you have legal aid for a number of parties with the same interest in a case e.g. multiple pursuers in a reparation case, you can choose one application as the “lead application” and apply for all approvals under this lead application.

When you apply for approval you should provide details of the linked reference numbers within the application. This is so we will know to apportion the costs between the different grants of legal aid at the end of the case. If you decide to do this you must use this approach for all requests for approvals for experts for the entire case.

Once decree is granted then cover under a grant of legal aid generally comes to an end.

However this is different when decree has been granted in a case where clawback will occur and you are looking to take enforcement action to obtain payment of the sums, for example when a capital/principal sum and/or expenses have been awarded to the assisted person. In these situations you can ask for our authority to undertake diligence to help you enforce the order.

This guidance does not apply to diligence on certain alimentary orders which is subject to different arrangements.

How do I apply for approval?

You can apply for approval by sending an online message (or letter) to our Principal Sums Team. In this you should include details of:

• Each step you wish to carry out.
• The costs involved.
• The prospects of recovery.
• A copy of the decree.

What do I need prior approval for?

The steps you may want to undertake could include an earnings arrestment, bank arrestment, attachment orders etc.  You do not need prior approval to serve a charge for payment.

I need to obtain valuation of property – what steps need prior approval?

If you need to get an up to date valuation of the property in the action, we are happy for you to take it from an internet search of a similar property in the same neighbourhood.

You will need to obtain our prior approval if this is not possible and you need to carry out a formal valuation of the property. You should ensure that your client is aware that this may increase their liability to us.

How do I submit an account for this work?

Once we have authorised the enforcement work you can include this in your account under the civil grant. You can include this work in a supplementary account if you have already submitted your main account.

What should I do if enforcement relates to expenses?

Please contact our Collections Unit if you want to undertake enforcement work where only expenses have been awarded. You can also contact Sara Brown, Senior Specialist, on 0131 240 1998 or by email, if you have any queries about this.