New regulations to add to list of disregarded payments when assessing applications

This update explains changes to our legal aid guidance as a result of the Legal Aid and Advice and Assistance (Miscellaneous Amendment) (Scotland) Regulations 2023 coming into force on Monday 23 January 2023.

These regulations amend the relevant legal aid regulations by adding:

• compensatory payments made under the Scottish Infected Blood Support Scheme and
• additional payments introduced in response to increases in the cost of living under the Social Security (Additional Payments) Act 2022 (“the Additional Payments Act 2022”) and the Social Fund Winter Fuel Payment (Temporary Increase) Regulations 2022 (“the Winter Fuel Regulations 2022”)

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.

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

Temporary additional winter fuel payments

Please note, in relation to the temporary additional amounts to the winter fuel payments, it is only the temporary additional amounts which are to be disregarded or excluded from clawback provisions, subject to what is stated below.

For example, if a client would normally be eligible to receive a winter fuel payment of £100 but instead, due to the Social Fund Winter Fuel Payment (Temporary Increase) Regulations 2022, received £250, it is only the amount of £150 which can be disregarded and is exempt from clawback.

Disregarded payments

Regulation 2 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
• they are also excluded from bearing fees and outlays when forming part of any recovered or preserved property in proceedings.

Regulation 3 amends the Civil Legal Aid (Scotland) Regulations 2002 by providing that:

• the additional cost of living payments introduced by the Additional Payments Act 2022 are disregarded in the assessment of an applicant’s disposable income
• Scottish Infected Blood Support Scheme payments, and the additional cost of living payments introduced by both the Additional Payments Act 2022 and the Winter Fuel regulations 2022 are disregarded in the assessment of an applicant’s disposable capital
• all payments are also excluded from bearing fees and outlays when forming part of any recovered or preserved property in proceedings.

Regulation 5 amends the Children’s Legal Assistance (Scotland) Regulations 2013 by providing that:

• the additional cost of living payments introduced by the Additional Payments Act 2022 are disregarded in the assessment of an applicant’s disposable income (please note: use the ‘other’ box within LAOL to detail the name of the benefit and insert £0 as the amount, to ensure the benefit is not included in the assessment)
• Scottish Infected Blood Support Scheme payments, and the additional cost of living payments introduced by both the Additional Payments Act 2022 and the Winter Fuel Regulations 2022 are disregarded in the assessment of an applicant’s disposable capital
• all payments are also excluded from bearing fees and outlays when forming part of any recovered or preserved property in proceedings.

These payments will be added to the list of disregarded payments shown in the legal aid guidance.

In addition, we will also disregard these payments where we assess financial eligibility for Summary, Solemn and Criminal Appeals legal aid using the undue hardship test.

For further information, please contact:

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

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

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