Amended regulations for Carer Support Payments and National Security Act 2023 come into force

This update is to tell you about changes to our legal aid guidance as follows:

• The Legal Aid and Advice and Assistance (Miscellaneous Amendment) (Scotland) (No.4) Regulations 2023 (“No.4 Regs 2023”) come into force today, Wednesday 15 November 2023
• The Carer’s Assistance (Carer Support Payment) (Consequential and Miscellaneous Amendments and Transitional Provision) (Scotland) Regulations 2023 (“Carer’s Assistance Regs 2023”) come into force on Sunday 19 November 2023.

No.4 Regs 2023 and Carer’s Assistance Regs 2023 – Carer Support Payments

These Regulations amend the relevant Advice and Assistance, and Civil and Children’s Regulations by adding Carer Support Payments to the list of payments which can be disregarded from the assessment of an applicant’s disposable income or capital in all types of legal assistance.

Regulation 4 of the Carer’s Assistance Regs 2023 amends the Advice and Assistance (Scotland) Regulations 1996 by providing that:

• these payments are disregarded in the assessment of an applicant’s disposable capital and income in respect of all forms of advice and assistance;
• these payments are excluded from bearing fees and outlays when forming part of any recovered or preserved property.

Regulation 6 of the No.4 Regs 2023 amends the Civil Legal Aid (Scotland) Regulations 2002 by providing that:

• these payments are disregarded in the assessment of an applicant’s disposable capital and income in respect of civil legal aid;
• these payments are excluded from bearing fees and outlays when forming part of any recovered or preserved property.

Regulation 10 of the No.4 Regs 2023 amends the Children’s Legal Assistance (Scotland) Regulations 2013 by providing that:

• these payments are disregarded in the assessment of an applicant’s disposable capital and income in respect of children’s legal assistance.

We will add the Carer Support Payments to the list of disregards shown in the Civil, Children’s and Criminal Keycards, which will be available on our website from Friday, 17 November 2023.

No.4 Regs 2023 – National Security Act 2023

The No.4 Regs 2023 also:

• make minor amendments and corrections to the Civil Legal Aid (Scotland) (Fees) Regulations 1989 and the Criminal Legal Aid (Scotland) (Fees) Regulations 1989
• amend the Advice and Assistance (Financial Limit) (Scotland) Regulations 1993, Advice and Assistance (Scotland) Regulations 1996, The Criminal Legal Assistance (Fees) (Scotland) Regulations 2011 and Advice and Assistance (Assistance by Way of Representation) (Scotland) Regulations 2003 in response to the National Security Act 2023 (“2023 Act”) to ensure that legal advice and assistance is available to those who are detained under section 27 of that Act.

Please note: Section 27 of the Act is not yet in force and further amendment of legal aid legislation is required to ensure that legal advice and assistance is available to those detained under section 27 of the 2023 Act on the same conditions as those detained under the relevant provisions of the Criminal Justice (Scotland) Act 2016, the Counter-Terrorism and Border Security Act 2019, and the Terrorism Act 2000.

We are currently discussing the necessary additional legislative changes with Scottish Government and will provide an update once they are in force.

For further information, please contact:

Civil: Cindy Morrice, Civil Finance Manager
E: morriceci@slab.org.uk

Children’s: Wendy Dalgleish, Head of Civil and Children’s Legal Assistance
E: DalgleishWe@slab.org.uk

Criminal: Kingsley Thomas, Head of Criminal Legal Assistance
E: thomaski@slab.org.uk