Keycards to be updated as new Regulations add to lists of disregarded payments when assessing applications

The Legal Aid and Advice and Assistance (Miscellaneous Amendment) (Scotland) Regulations 2024 come into force on Thursday 3 October 2024.

They amend the relevant legal aid regulations by adding the following to the list of payments which can be disregarded from the assessment of an applicant’s disposable income or capital in respect of advice and assistance, civil legal aid and children’s legal assistance:

• carer’s allowance supplement under section 81 of the Social Security (Scotland) Act 2018(3); and
• care experienced students bursary paid under regulation 3(1) of the Student Support (Scotland) Regulations 2022(4).

The regulations also state that the specified payments are exempt from clawback.

The Legal Aid and Advice and Assistance (Miscellaneous Amendment) (Scotland) (No. 2) Regulations 2024 come into force on Saturday 12 October 2024.

The changes apply to fees for work done or outlays incurred on or after 12 October 2024.

The regulations amend the relevant legal aid regulations by adding the following to the list of payments which can be disregarded from the assessment of an applicant’s disposable income or capital in respect of advice and assistance, civil legal aid and children’s legal assistance:

• Infected Blood Compensation Scheme payments (UK scheme)
• miscarriage of justice payments
• Grenfell Tower compensation scheme payments
• human trafficking or exploitation victim payments (payments made in terms of S.9 of the Human Trafficking and Exploitation (Scotland) Act 2015, regulations made under S.10 of that Act or by way of support provided under a Modern Slavery Victim Care Contract).

Carer’s allowance payments are also added to the list of payments which can be disregarded from the assessment of an applicant’s disposable income or capital in respect of civil legal aid and children’s legal assistance. These payments are already disregarded in respect of advice and assistance cases.

The regulations also state that the specified payments are exempt from clawback.

These regulations also cover fees payable to counsel for the drafting of written submissions in criminal proceedings where they have been ordered by the court

Regulation 3 amends the table of fees in Part 2 of schedule 2 of the Criminal Legal Aid (Scotland) (Fees) Regulations 1989, to make provision for counsel fees for the drafting of written submissions where they have been ordered by the court for the following criminal proceedings:

• Bill of Suspension
• Bill of Advocation
• Stated Case
• Appeal Hearing before a Full Bench (5 or more Judges)
• Hearing on petition to the Nobile Officium
• Reference to the High Court (devolution issue)
• Appeal arising from pre-trial or continuing trial hearing
• Appeal from the Sheriff Appeal Court to the High Court under section 194ZB of the 1995 Act
• Referral from the Sheriff Appeal Court to the High Court under section 175A of the 1995 Act.

The Disability Assistance for Older People (Consequential Amendment and Transitional Provision) (Scotland) Regulations 2024 come into force on Monday 21 October 2024.

These amend the relevant legal aid regulations by adding the following to the list of payments which can be disregarded from the assessment of an applicant’s disposable income or capital and exempt from clawback in respect of all forms of advice and assistance, and from the assessment of an applicant’s disposable income in respect of civil legal aid:

• Pension age disability payment and short term-assistance given in accordance with the Disability Assistance for Older People (Scotland) Regulations 2024.

Pension Age Disability Benefit is a replacement for Attendance Allowance and is due to be piloted in Argyll & Bute, Highland, Aberdeen City, Orkney and Shetland from 21 October 2024. The pilot will be expanded in March 2025 and then the benefit will be made available across the rest of Scotland in April 2025.