Covid-19: Legal Aid and Advice and Assistance (Miscellaneous Amendments) (Coronavirus) (Scotland) Regulations 2020

We explained in March 2020 that we had developed an initial four point plan and introduced a number of changes to the operation of the legal aid system to assist the profession and support the wider justice system as a result of Covid-19.

Significant progress has been made since then and we have already put in place a wide range of measures to assist with the timely processing and submission of applications and accounts.

The Legal Aid and Advice and Assistance (Miscellaneous Amendments) (Coronavirus) (Scotland) Regulations 2020 will come into force on:

• 1 July 2020 – for regulations 2, 3, 5, 6 and 7; and
• 5 August 2020 – for regulation 4.

These Regulations amend a number of existing Regulations made under the Legal Aid (Scotland) Act 1986, to modify the provision of legal aid from the relevant enforcement date until the expiry of the Coronavirus (Scotland) Act 2020 (which is referred to as the emergency period in the Regulations).

Please note that we have updated the Regulations section of our website, marking Covid-19 amended text in blue to highlight where changes have been made.

Details of the amendments are as follows:

Provision to allow interim fees where work covered by a block fee has commenced in Chapter II (Sheriff Court Civil Fees (Defended)) of Schedule 6 of the Civil Legal Aid (Scotland) (Fees) Regulations 1989, cases.

Paragraph 24 of the Notes on the operation of Chapter II, makes it clear that: “Unless otherwise prescribed no fee is allowable unless the work for which the fee is payable has been completed in its entirety”.

Paragraph 24, will be amended for the duration of the emergency period and we will have the power to make payment for work which has commenced but is not yet completed, subject to the following conditions:

• The payment made shall be an interim payment only and the fee payable to the solicitor, if any, in respect of the work to which such interim payment relates shall be assessed upon receipt of a claim by the solicitor;
• Any interim payment made will be taken into account in the calculation of any fee payable where, following assessment of a claim for payment to which that interim payment relates, SLAB determines that a fee is payable to the solicitor;
• Any interim payment made remains repayable by the solicitor to SLAB if, and to the extent that, following assessment of a claim for payment under this chapter to which that interim payment relates, SLAB determines that such interim payment exceeds the fee that is payable to the solicitor.

This amendment allows you to make an interim claim for a block fee where you have commenced work which is covered by that block and where you anticipate that you will complete, in its entirety, the work by the time that the case concludes.

SLAB has the power to determine what, if any, fee is payable at the interim stage and the purpose of the interim provisions will continue to be to make payment as quickly as possible and to avoid, where possible, the need to become involved in negotiations that are more appropriate at the final accounts stage.

Where a block fee has been paid at the interim fee stage and it is subsequently established that either no fee or a lower fee is payable, we will either discount any overpayment from any other fees which remain payable in the same case or where insufficient funds are available take steps to seek repayment of the sums due.

How to submit an interim account in a Schedule 6 block fees, where fees are claimed for a block of work which has commenced but has not yet concluded

As our online work items are based on the block of work having been completed, you must not use these to make an interim claim where that claim includes any blocks of work that have not been fully completed.

To make an interim claim that includes blocks commenced, but not completed, you should use the upload feature to attach a copy of your interim account rather than framing it using online work items.

Please see our guidance on how to upload a copy of your interim account.

Provision that allows counsel to submit a claim in respect of preparation prior to a case concluding under Schedule 2 of the Criminal Legal Aid (Scotland) (Fees) Regulations 1989.

Paragraph 13(d) of the Notes on the operation of Schedule 2 (Fees of counsel) of the Criminal Legal Aid (Scotland) (Fees) Regulations 1989 makes clear that: “A fee for separate preparation shall be allowed only on the following conditions …such a fee is not payable until the case to which it relates has concluded”.

Paragraph 13(d) has been amended to enable claims to be made during the emergency period before the conclusion of proceedings.

Provision to submit interim fee claims under advice and assistance where there is a prospect of property being recovered or preserved – Advice and Assistance (Scotland) Regulations 1996

Where an interim claim is made during the emergency period, we have the power to disregard temporarily any property (of whatever nature and wherever situated) which may, at a future date, be recovered or preserved for the client to whom the advice and assistance has been provided and pay out of the Fund such fees or outlays in respect of an interim claim as we are satisfied have otherwise been properly incurred in accordance with section 4(2)(a) of the Act.

The making of any interim payment under this regulation has no effect on the application of Section 12 of the Act to the fees and outlays finally allowable to the solicitor.

Where we have made an interim payment under this regulation, we have the right to recover any sum paid out of the Fund to the solicitor in respect of the advice and assistance so given, from either:

(a) the solicitor to whom the payment from the Fund is made; or

(b) the person to whom the advice and assistance was provided, in the following circumstances – if, at any time prior to or after such interim payment that person or any solicitor acting on that person’s behalf has, in respect of the same matter for which advice and assistance was provided:

• • • received any expenses which (by virtue of a judgment or order of a court or an agreement or otherwise) are payable to that person; or
    • recovered or preserved any property (of whatever nature and wherever situated), including that person’s rights under any settlement arrived at in connection with the matter in order to avoid or bring to an end any proceedings.

The sum recoverable shall be the amount of fees and outlays paid, less any amount which would have been properly payable by way of fees and outlays under Section 12(3)(d) of the Act.

In most cases, the property recovered will take the form of payment processed via the solicitor, and in those circumstances we will expect and require the solicitor to make reimbursement of the interim payment from the recovered amount, as we will in any other circumstances where the solicitor makes arrangements for their final account to be paid from the funds recovered.

We recognise, however, that there will be circumstances where the recovery will not involve the solicitor intromitting with funds, for example where the recovery is in the form of the receipt of illiquid property directly by the client, and the solicitor does not separately have a further or final account which falls to be paid by the client from the recovery.

It may therefore be appropriate for us to liaise with the client in respect of the reimbursement in such cases. There are potentially a range of permutations and further guidance will be issued in due course.

Please note that the current options for hardship applications remain available.

Further update: We are in the process of making the necessary system and operational change and we will provide a further update on how claims should be submitted in advance of this regulation coming into force on 5 August 2020.

Provision to instruct the duty solicitor as a local agent to plead not guilty and still be paid the full core fee where you have a pre-existing solicitor client relationship with the assisted person

Regulation 4(5B) of the Criminal Legal Aid (Fixed Payments)(Scotland) Regulations 1999, reduces the core fee payable to a solicitor where the accused:

(a) was represented by a solicitor arranged by SLAB to provide criminal legal aid in accordance with regulation 7(1) of the Criminal Legal Assistance (Duty Solicitors) (Scotland) Regulations 2011;

(b) tendered a plea of not guilty to any charge libelled in a complaint at the first diet at which the assisted person was called upon to plead; and

(c) before the commencement of the trial tendered a plea of guilty to that charge or any other charge in that complaint resulting in the disposal of the case.

To help address the specific challenges arising from the Covid-19 situation, for the duration of the emergency period, a measure will apply to mitigate the effect of “half fee” rule in relation to the summary criminal fixed payment.

The normal effect of regulation 4(5B) of the Fixed Payment Regulations is that where a plea of not guilty is tendered by a solicitor who is the duty solicitor that day, if there is subsequently a change of plea prior to trial, it is a “half fee” that is payable.

Even although there are clear policy objectives behind these rules, in the circumstances of the current Covid-19 emergency it is considered that the more immediate public health objective is served by removing impediments to the use of local solicitors, and the duty solicitor in particular as the solicitor most likely to be in attendance at court, so as to reduce travel and minimise the number of solicitors in attendance at physical court hearings.

For the duration of the Covid-19 emergency period this “full fee” provision is available where that principal solicitor is instructed:

(a) by a person with whom they have a pre-existing solicitor client relationship and

(b) that person has actually instructed the solicitor in the case (as opposed to it merely being a possibility that there is future instruction).

Please note that the pre-existing solicitor client relationship can only be established by being able to demonstrate to us that you have assisted the client in another matter. Being the new client’s family solicitor, getting a recommendation from a friend or family member of the client, or providing earlier advice on the same case at a police station are all examples of the situations which do not meet the statutory definition.

Where these conditions are met, then the Covid-19 rule change means that the principal solicitor so instructed in the case can use the solicitor who is the duty solicitor that day (or any other solicitor) as their local agent to cover the pleading diet without impacting on the fixed payment fee under the half fee rule.

Please note, however, that no matter who is instructed, the work is an agency appearance. The work is not duty-scheme work where it is carried out by the solicitor (who happens to be the duty solicitor) as a local agent. The rule change only removes what would be the otherwise half-fee impact on a change of plea later.

The nominated solicitor is responsible for the negotiation and payment of any fee agreed with the local solicitor to whom the appearance is delegated to, e.g. a local agent’s fee, and this is not a charge that may be passed on as an outlay in the Summary Criminal account: the work is part of the overall work in the case covered by the fixed payment. The duty solicitor cannot make a claim under the duty provisions for the case either as it is not duty work.

Solicitors should note that, if the conditions for the “full fee” do not apply, then the half-fee rule continues to apply. Solicitors may even choose to proceed on that basis.

It remains open to a solicitor who has been given notification that a previous/existing client is appearing from custody but who has not got to the point of being instructed in the case to invite the duty solicitor to act and put the client through the first appearance.

That would be duty-scheme work, and the duty solicitor would be entitled to claim payment of duty fees, but in the event of a not guilty plea, and then a change of plea, the “half fee” rule would apply as it has historically.

For the duration of the Covid-19 emergency, where the principal solicitor is instructing the duty solicitor in an appearance from custody, it is incumbent on both to be clear upon which of the two bases the appearance is being instructed and undertaken: Agency/Full Fee or Duty/Half Fee.

In conclusion:

1. If the nominated solicitor has a pre-existing relationship with the client and has taken instructions, and is as a consequence the principal solicitor acting for the client in the new matter in which the client is appearing, then where nominated solicitor instructs the Duty Solicitor to tender a plea of not guilty, the summary criminal full fee can be claimed. However the Duty Solicitor is acting as a local agent for the nominated solicitor, and cannot claim under the Duty scheme.

2. If the nominated solicitor has a pre-existing relationship with the client, and although notified of the court appearance, has not prior to the pleading diet taken instructions and agreed to act in the case (even if that then later happens), then if the nominated solicitor arranges with the Duty Solicitor for the Duty Solicitor to cover the pleading diet at which the plea is Not Guilty, then the summary criminal half fee still applies. In this situation, the Duty Solicitor is acting as such and can claim under the Duty scheme.

3. If the nominated solicitor has no pre-existing relationship with the client, and the Duty Solicitor pleads Not Guilty, then the summary criminal half fee still applies, and the Duty Solicitor is acting as such and can claim under the Duty scheme.

Summary Criminal Online system – duty solicitor question

In the summary criminal online application, at the question “Was not guilty plea entered by the duty solicitor?”

• Answer NO if regulation 4(5C) applies (*see immediately below for what that means), and you instruct the duty solicitor to be your local agent, (scenario 1 above)

• Answer YES, if regulation 4(5C) does NOT apply and you instruct the duty solicitor, (scenarios 2 and 3 above).

*Regulation 4(5C) applies where:

• The case arises during the Covid-19 emergency period defined in the regulations
• The solicitor has a pre-existing relationship (see above)
• The solicitor is instructed in the new case (and consequently no other may act on the client’s behalf unless authorised by the solicitor).

Provision to provide ABWOR for certain appeals arising from the Coronavirus Act 2020

The Advice and Assistance (Assistance by Way of Representation) (Scotland) Regulations 2003, have now been amended to provide for appeals:

(i) Against any decision taken under regulations made by the Scottish Ministers under paragraph 1(1) of schedule 19 of the Coronavirus Act 2020 by virtue of which a special restriction or requirement is imposed on or in relation to a person; or

(ii) Under paragraph 38 of schedule 21 of the Coronavirus Act 2020 in relation to an appeal against a requirement or restriction imposed under paragraph 35 of that schedule.

You should use the new category code CORO (Numeric Code 5800) when making your application.

The initial expenditure limit is £180.

The appeals are prescribed proceedings and the assistance by way of representation is therefore available regardless of financial circumstances and no contribution shall be payable by the client.

Provision for appointed solicitor or solicitor connected with the appointed solicitors firm to instruct the duty solicitor to represent the client from custody – Criminal Legal Assistance (Duty Solicitors) (Scotland) Regulations 2011

We advised you in a previous update of changes that we had made to allow as another “good reason” the delegation of a custody appearance by an appointed solicitor to a solicitor outside the firm.

For the duration of the emergency period representation by an appointed solicitor may be effected, from the appearance from custody onwards, through the services of another solicitor including the duty solicitor, where the other solicitor:

(a) Is expressly authorised to act by the appointed solicitor or by a solicitor connected with the appointed solicitor’s firm;

(b) And their services are required because the appointed solicitor cannot attend personally due to:

(i) Illness or incapacity;

(ii) The arising, after instruction in relation to the appearance, of a professional obligation
to act in person in another case that is to call elsewhere at or around the same time; or

(iii) Another good reason.

The amendment aims to facilitate the efficient progress of summary criminal proceedings and to help support compliance with the Government’s measures to slow the spread of the virus during the current Covid-19 emergency by minimising the number of solicitors in court and reducing unnecessary travel.

Where you elect to instruct the solicitor who is the duty solicitor in these circumstances, they are instructed as a local court agent, not as duty agent and they will not be entitled to make any claim under the duty arrangements.

You will be responsible for the negotiation and payment of a local agent’s fee, and this is not a charge that may be included as an outlay in your fixed payment account: the work is part of the overall work in the case and covered by the fixed payment.

In summary, for the duration of the Covid-19 restrictions only, you can provide ABWOR where:

• You meet the pre-existing relationship criteria for appointed solicitor
• Your client is eligible
• You take instructions and grant ABWOR but want to delegate the appearance to another solicitor or to the duty solicitor.

You should submit the ABWOR application online and select “another good reason” for being unable to act immediately. If you enter “Covid-19” in the free text box, we will accept the application on that basis.

If you have any queries on the update, please contact:

Steven Carrie, Senior Technical Specialist – carriest@slab.org.uk

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