Approved subject matters for standard advice and assistance: deciding whether a matter is ‘distinct’

Where you approve an application for advice and assistance, you must decide whether the advice and assistance relates to a “distinct” matter.  This is simply a way of describing a significant piece of legal advice that your client would expect to receive from you.

We, in consultation with the Law Society, have set out an extensive list of categories of case that fall within this description.

You can provide civil advice and assistance in connection with these listed matters, without applying to us for authority, up to the level of initial authorised expenditure of £135 or £180.

The list of subject matters recognises that you may have to give advice on individual matters such as divorce, reparation, sale of heritable property, residence/contact orders, all of which are distinct matters.  However, where the subject matter to which the advice and assistance relates is a listed category you only approve one application for advice and assistance which includes:

• All other listed categories that are “reasonably ancillary” to the advice you are giving
• All “reasonably ancillary” matters that are not listed

For example, the primary category code could be DIV (divorce) and other related ancillary related matters could be RES (residence) and INT (interdict).

You are providing advice to your client “on the application of Scots law to any particular circumstances which have arisen in relation to the person seeking the advice” [section 6(1)(a) of the Legal Aid (Scotland) Act 1986].

For example, where you give your client advice and assistance on a divorce, the same certificate will include:

• All advice in connection with residence and contact matters, financial provisions, division and sale of heritable property (all listed matters)
• Matters that are not listed, such as arrears of council tax or a dispute over shares or the status of a joint bank account in the course of adjusting a minute of agreement

Examples of matters that should not be included under the same grant where you give your client advice and assistance on a divorce include:

• Arrears of council tax
• Eviction
• Housing benefit

You should not make a separate grant, in respect of financial provisions, in order to limit the amount payable by your client under the clawback provisions.

The fact that your client’s problem is not specifically shown on the list of approved subject matters does not necessarily mean that you cannot give them advice and assistance.  Some of the approved subject matters are quite specific and others are general.

If your client’s problem has reached the stage where an action needs to be defended or appealed to a court or tribunal, you can give them standard advice and assistance under these categories.

If the problem is not on the list, and it has not reached a legal procedure stage like this, you can still consider giving them diagnostic advice and assistance to offer brief general advice on the matter, and perhaps refer them to another agency.

Where your client has a problem in relation to a category in the list below, you can grant and provide standard advice and assistance.

Family/matrimonial related

• Divorce
• Separation
• Variation
• Contact
• Aliment/Child Support Agency
• Residence
• Adoption (including permanence orders)
• Matrimonial homes
• Child abduction/Hague Convention applications
• Cohabitee rights under family law
• Civil partnerships

Other processes

• Interdict (including interdicts under Matrimonial Homes (Family Protection) (Scotland) Act 1981)
• Interdict (to include “other”, “matrimonial” and “protection from abuse” interdicts and including non-harassment orders)
• Reparation
• Breach of contract
• Contempt of court (including minutes for failure to obtemper)
• Fatal Accident Inquiry
• Judicial review
• Reduction
• Declarator
• Bankruptcy/petition by debtor
• Implement
• Delivery
• Summary application
• General defence to any action (that is, where a client is in receipt of a writ)
• Criminal Injuries Compensation Authority
• Appeals to courts and tribunals
• Statutory discrimination
• Restoration of driving licence
• Anti-social behaviour orders
• Sexual offences prevention orders
• Proceeds of crime
• European Judgement Convention

Executry related

• Wills
• Executries
• Power of Attorney

Housing related

• Recovery of heritable property (including eviction and Home Owner and Debtor Protection (Scotland) Act 2010)
• Conveyancing
• Division and sale
• Landlord and tenant
• Heritable rights
• Homelessness
• Home Debtors

Social welfare related

• Immigration/asylum
• Mental health
• Adults with incapacity
• Benefit appeals/reviews
• Employment
• Education
• Debt (where debts exceed £500, and the advice does not include multiple repayment plans)
• Community care – assessment of need, eligibility/charging for services and direct payments.
• Additional Needs Support Tribunal