Factors to consider when preparing your account

In terms of regulation 7A of the Civil Fees Regulations, accounts submitted in respect of children’s legal aid, where you instruct another solicitor to carry out work in relation to proceedings (other than proceedings in the Sheriff Appeal Court, the Court of Session or the Supreme Court):

• accounts shall be submitted only by the nominated solicitor, payment of the other solicitor being a matter for adjustment between the nominated solicitor and the other solicitor out of the fees and outlays allowed to the nominated solicitor; and
• in determining the sum to be allowed to the nominated solicitor, we will take into account the work carried out by the other solicitor.

You may only charge for work activities that have been properly incurred and fall within the scope of legal aid which has been made available.

It is important, especially when your client may have multiple cases covered by distinct grants of legal aid or advice and assistance that you ensure that you account to us for all work under the correct grant, subject to the exception below.

Where your client has one grant of children’s legal aid in respect of conjoined proceedings, this covers all related cases.

The account should confirm the names of all children in relation to whom work is being undertaken.

Please note that you still have to ensure that you make separate children’s legal aid applications for each distinct court proceeding as listed in [Regulation 3 (distinct proceedings) of the children’s regulations].

If your client has more than one grant of children’s legal aid in respect of the conjoined proceedings, only one account should be submitted under the youngest child’s certificate and “Nil” accounts should be submitted for the other certificates held by your client.

The same applies where a safeguarder or curator ad litem has more than one grant of children’s legal aid to represent multiple children in connection with conjoined proceedings.

Where the work differs greatly in relation to the individual children, you may elect to submit separate accounts.

The accounts should be apportioned where appropriate and you should quote all related references. Where multiple accounts are being submitted these should be lodged together where possible.

We can make payment for work done prior to the grant of legal aid but only where work is done as a matter of special urgency under regulation 18 of the Children’s Legal Assistance (Scotland) Regulations 2013, to protect your client’s interests.

There is no similar provision under advice and assistance or ABWOR.

Where special urgency work has been undertaken you must make an application for children’s legal aid within 28 days of commencement of the urgent work.

Failure to do so will exclude that work from any legal aid that may subsequently be made available and we will not be able to make payment.

You can continue to charge for any non-urgent work under any grant of advice and assistance that you have made available to your client prior to the grant of legal aid.

There can often be ongoing panel hearings which do not directly relate to the distinct proceedings for which children’s legal aid is available.

For example, there could be a children’s legal aid grant for a Section 101 referral concerning allegations of the commission of an offence by a child.

Where you undertake work in relation to a forthcoming children’s panel hearing concerning contact, this work cannot be charged for under the Section 101 certificate.

However, where the grounds of referral concern contact issues, reasonable charges will be considered.

Ordinarily this is not covered by the provision of legal representation and no fee will be considered unless it can be shown that you provided some legal representation.

We cannot consider payment of the framing of a report ordered from the curator ad litem, as the office of a curator ad litem appointed by the sheriff is distinct from the office of a solicitor (reference is made to Nugent –v- Nugent Glasgow Sheriff Court 1998 unreported and Henderson –v- Henderson 1994 SCLR 533).

A person appointed to act as a safeguarder and/or curator ad litem in 2011 does not need not be a practising and registered solicitor.

In such a role, you will not provide legal services to the child or adult.

Children’s legal aid is defined in section 28B(2) of the Legal Aid (Scotland) Act 1986 (inserted by the 2011 Act) and consists of representation by a solicitor and, where appropriate, counsel in various proceedings under the 2011 Act which are listed at section 28B(3).

It includes all assistance a solicitor or counsel usually gives in the steps preliminary or incidental to such proceedings.

We can only pay for the provision of legal services (legal representation and assistance) by you or counsel and not for work carried out by a safeguarder or curator.

Scottish Ministers make provision for the payment of safeguarder’s expenses, fees and allowances.

Currently the Scottish Government has contracted this function to Children 1st.

There is no statutory payment mechanism for a curator ad litem.

As you will note from this guidance we cannot pay a curator.

Make clear that you have satisfied the statutory tests

In any case where you grant advice and assistance or ABWOR, it is always helpful if you can make clear in your account that no work is being charged prior to the time when you were satisfied the grant could be made available namely it was a matter of Scots law and the client was financially eligible.

This is particularly important in cases where the first charge is travelling to see a client and there is no corresponding narrative to explain how you were satisfied that the statutory tests had been met.

In the situation where there was an initial meeting in your office, you must make this clear as only at this point are you entitled to charge for work done or outlays incurred.

Best practice is to insert a “nil entry” referring to a telephone call or correspondence.

No work chargeable before advice and assistance or legal aid is granted

Work undertaken before advice and assistance is granted is not chargeable.

Under advice and assistance you cannot charge for any time spent:

• obtaining information from a client about eligibility
• assessing financial eligibility
• obtaining evidence of disposable income or capital
• completing an advice and assistance application
• travelling to meet a client with a view to granting advice and assistance.

Advice and assistance is the giving of advice to a client on the application of Scots law to their circumstances; it is not about determining whether they are eligible to receive it.

You should always assess eligibility and obtain the documentary evidence of financial eligibility as early as possible, preferably at the initial meeting unless there is real urgency and it is not practicable, and keep this on file.

Any further work post-grant in obtaining verification, the purpose of which is to ensure that only those who are eligible for advice and assistance receive it and having admitted the client to advice and assistance, is not chargeable.

No work chargeable where advice was unnecessary and unreasonable

We may disallow the entire account, even within the initial limit of authorised expenditure, if we consider giving the advice was unnecessary and unreasonable. Circumstances in which this could arise include where multiple advice has been provided to:

• a class or range of individuals in connection with a legal challenge if a separate interest cannot be shown
• a class or range of clients in connection with a legal challenge that has no practical benefit to the client, or where there is no current remedy, the law having been established.

Advice & Assistance where legal aid already in place

Advice and assistance cannot be provided to a person in connection with proceedings before a court or tribunal at a time when he is receiving legal aid in connection with those proceedings [Section 7(2) of the Act]. You cannot continue to provide parallel advice and assistance and legal aid when this arises.

Scope of Advice and Assistance or ABWOR

You may only charge for work activities that have been properly incurred and fall within the scope of legal aid or advice and assistance which has been made available.

There are certain work items which cannot be considered under a grant of legal aid, Advice and Assistance or ABWOR.