The scope and availability of ABWOR in civil proceedings

Assistance by Way of Representation (ABWOR) is defined in section 6(1) of the Legal Aid (Scotland) Act 1986 as:

“advice and assistance provided to a person by taking on his behalf any step in instituting, conducting or defending any proceedings

• before a court or tribunal, or
• in connection with a statutory inquiry,

whether by representing him in those proceedings or by otherwise taking any step on his behalf (as distinct from assisting him in taking such a step on his own behalf).”

ABWOR is a type of advice and assistance made available under Part II of the Act which enables representation to be provided but only for the proceedings listed in the Advice and Assistance (Assistance by Way of Representation) (Scotland) Regulations 2003.

You should determine whether the subject matter of the advice and assistance concerns a civil, criminal or children’s matter using our guidance.

• Petitions for the appointment of an executor to a deceased person.
• Proceedings before the Mental Health Tribunal for Scotland
• Disciplinary proceedings before a governor in relation to a prisoner, where the governor has given permission for legal representation
• Civil proceedings arising from a failure by a person to pay a fine or obey an order of the court
• An employment tribunal
• proceedings before the First-tier Tribunal for Scotland in accordance with Part 3 of Schedule 17 to the Equality Act 2010
• Custody appearances under the Protection from Abuse and Matrimonial Homes Act.

• The Immigration and Asylum Chamber of the First-tier Tribunal
• The Immigration and Asylum Chamber of the Upper Tribunal

• An appeal against a penalty imposed under:
  • Section 60 of the Value Added Tax Act 1994
  • Section 8 of the Finance Act 1994
  • Schedule 24 of the Finance Act 2007
  • Schedule 41 to the Finance Act 2008
• An appeal against a decision of the Pensions regulator

An appeal against a decision made under or by virtue of:

• any of the sections 1 to 5A of the Pensions Appeal Tribunal Act 1943 by a Pensions Appeal Tribunal or the First-tier Tribunal
• Section 4 of the Vaccine Damage Payments Act 1979
• Section 20 of the Child Support Act 1991
• Section 12 of the Social Security (Recovery of Benefits) Act 1997
• Section 12 or 13 of the Social Security Act 1998
• Paragraph 6 or 7 of Schedule 7 to the Child Support, Pensions and Social Security Act 1998
• Section 39 of, or paragraph 3 of Schedule 2 to, the Tax Credits Act 2002
• Section 158 of the Health and Social Care (Community Health and Standards) Act 2003
• Section 23 of the Child Trust Funds Act 2004
• Section 50 of the Child Maintenance and Other Payments Act 2008

• Functions of the former Additional Support Needs Tribunal, allocated to the Health and Education Chamber

In civil proceedings arising from a failure to pay a fine or other sum or to obey an order of the court, you can provide ABWOR only where you are satisfied that:

• It is reasonable in the particular circumstances of the case to provide it
• It is likely the court will deprive your client of their liberty.

See Regulation 12 of the Advice and Assistance (ABWOR) (Scotland) Regulations 2003.