UPDATED: Regulations to increase solicitor and advocate legal assistance fees by 5% come into force on 1 April 2022

The Legal Aid and Advice and Assistance (Miscellaneous Amendments) (Scotland) Regulations 2022 are set to increase fees by 5% on 1 April 2022.

The regulations will also introduce an additional fee to solicitors representing an accused person appearing from custody when doing so on a day which has been designated a court holiday.

The regulations are available here.

The increase was announced in December 2020 by the then Justice Secretary Humza Yousaf following a series of meetings with the Law Society of Scotland. The increase in fees is the second tranche of a 10.25% uplift in fees over the last two financial years.

The increased fees are being introduced while opportunities continue to be explored for longer term reforms to the legal aid system in Scotland. Those reforms will involve the collaboration and engagement of key stakeholders to work together to advise the Scottish Government on an evidence-based approach for a review of payment structures and levels for legal aid services.

The Legal Aid and Advice and Assistance (Miscellaneous Amendments) (Scotland) Regulations 2022, which gives effect to the fee increase, will amend the following regulations made under the Legal Aid (Scotland) Act 1986:

• The Civil Legal Aid (Scotland) (Fees) Regulations 1989
• The Criminal Legal Aid (Scotland) (Fees) Regulations 1989
• The Legal Aid in Contempt of Court Proceedings (Scotland) (Fees) Regulations 1992
• The Advice and Assistance (Scotland) Regulations 1996
• The Criminal Legal Aid Fixed Payments (Scotland) Regulations 1999.

The Legal Assistance guidance will be updated to reflect the changes to the fees.

The regulations allow for the fee increase, with the exception of the undernoted proceedings, to apply to fees for work done on or after the 1 April 2022.

Where the work is conducted over more than one date, the work is deemed to have been done on the day on which the work comes to an end.

The practical effect of this is that fees can be charged at the increased rate where a block fee is completed after the coming into force date.

Similarly, where the account is chargeable on a detailed basis and a continuous item of work commenced before but concluded after the coming into force date that work would be chargeable at the increased fee rates.

For proceedings which are chargeable in terms of:

• Schedule 3, part III of the Advice and Assistance (Scotland) Regulations 1996 (sections 19, 30 and 36(1)(a) of the Criminal Justice (Scotland) Act 2016);
• Schedule III, Part V of the Advice and Assistance (Scotland) Regulations 1996 (table of fees allowable to solicitors for assistance by way of representation for proceedings under schedule 8 of the Terrorism Act 2000); and
• Criminal Legal Aid (Fixed Payments) (Scotland) Regulations 1999

the increase will apply only in relation to a case where the criminal legal assistance concerned is granted or made available on or after 1 April 2021.

Provision has also been introduced for an additional fee to be paid to solicitors representing an accused person appearing from custody when doing so on a day which has been designated a court holiday:

• court holiday” means a day prescribed as such (including an additional court holiday) in accordance with section 8(2) of the Criminal Procedure (Scotland) Act 1995;
• “holiday court sitting” means a sitting of a sheriff court on a court holiday, a Saturday or a Sunday by virtue of an order under section 28(1) or 29(2) of the Courts Reform (Scotland) Act 2014.

The additional fee of £80 will apply, where appropriate, in the following cases:

• Regulation 6 (duty solicitors fees) of the Criminal Legal Aid (Scotland) (Fees) Regulations 1989, for appearing in relation to that case on that day and any such supplementary fee shall not be taken into account for the purposes of any maximum total session fee under paragraph (1) or (2) of regulation 6
• Schedule 1 of the Criminal Legal Aid (Scotland) (Fees) Regulations 1989
• Schedule 1B of the Criminal Legal Aid (Fixed Payments) (Scotland) Regulations 1999
• Part 1 of schedule 3 of the Advice and Assistance (Scotland) Regulations 1996.

Regulation 7(5) of the Criminal Legal Assistance (Fees and Information etc.) (Scotland) Regulations 2008, has been amended ensuring that holiday court fees are not subsumed within a single consolidated payment where different types of criminal legal assistance are given in relation to the same matter.

Regulation 3(8) also makes textual amendments to the headings in the fee tables in Table A, Parts 1 and 2 of Schedule 4 of the 1989 Civil Fees Regulations which makes provision for fees of junior and senior counsel for proceedings in the Court of Session, to clarify which fees are to apply where the work done is not specified in any of the chapters in those tables.

Although not part of the fee increase, regulations mileage incurred on or after 1 April 2022 will be payable at an increased rate of 45p per mile.

In line with previous guidance and to assist you in claiming the fee increases referred to above it is important that you are aware of the differences in what we are able to do depending on whether:

• the accounts are submitted on the old system or the new system
• it is a paper or an online account.

The system will continue to work on the basis that the old online accounts system (FAMS) will only be available where there has been a previous claim for that reference number.

We expect all paper accounts to be claimed at the appropriate legal aid rates. Accounts may be returned where the incorrect legal aid rates have been used or new rates have not been applied where appropriate.

Where you are directed to the old system due to previous payments, the online fees have not been updated as we do not propose to make changes to that system as it is being phased out.

As the fee increase is not being automatically applied we will calculate the amount due and process this as a separate supplementary payment which will be done on the same day.

The fee tables on the new online system have been updated to the new rates as per the regulations. The system will automatically generate the correct fees for you.

Details of the different methods of submission are noted below.

Submitting accounts

Where you submit your account online, when you select the ‘Save & Continue (online)’ option where applicable the fee increase will be automatically applied to your account as the fee tables have been updated to the new levels as per the regulations.

Redevelopment paper

Where you select ‘Save & Continue (paper)’ you should ensure that the account is framed correctly in accordance with the new table of fees from the date the fee increase applies otherwise your account may be rejected.

Old LAOL accounts

As mentioned previously, the fee increase is not being automatically applied and we will calculate the amount due and process this as a separate supplementary payment which will be done on the same day.

These Regulations are being introduced to accommodate the increased fee rates and make amendments to the:

• Criminal Legal Aid (Scotland) (Fees) Regulations 1989, to substitute the maximum total fees allowable to duty solicitors representing accused persons in the sheriff or district court where the accused person pleads not guilty or where the case is adjourned under section 145 of the Criminal Procedure (Scotland) Act 1995; and
• Advice and Assistance (Financial Limit) (Scotland) Regulations 1993, to substitute the financial limit amounts for advice and assistance specified in section 10(2) of the 1986 Act beyond which solicitors are required to seek prior approval of the Scottish Legal Aid Board before providing further advice and assistance

and come into force come into force on 1 April 2022, to correspond with the coming into force date of the fee increase regulations.

The changes ensure that despite the increased fees the duty session limit will continue to cover the same number of accused persons when the fees regulations were introduced.

In addition, where, following a plea of guilty or in circumstances where the accused has not been called on to plead, and one or more adjournments are ordered by the court the limit payable to solicitors without applying for an uplift in the limit has been increased from £150 to £250.

This should significantly reduce the need for solicitors to apply for an uplift.

The majority of the initial limits of authorised expenditure under Advice and Assistance or Assistance by way of Representation (ABWOR), where solicitors are required to seek the prior approval of the Scottish Legal Aid Board before providing further advice and assistance or ABWOR, have been increased. The increased limits should reduce the need for solicitors to apply for increases in many cases. The new limits are:

Regulation 3 (financial limit)

• (b)(i)   where the advice and assistance or assistance by way of representation relates to a children’s matter, a civil matter which is a distinct matter or a civil matter which is not distinct but following application to the Scottish Legal Aid Board is to be treated as if it were so, the sum of £120;
• (b)(ii)   where the advice and assistance or assistance by way of representation relates to a civil matter not falling within sub paragraph (i), the sum of £45;
• (c)(i)   where the advice and assistance relates to a criminal matter as regards which a summary complaint has been served, the sum of £105;
• (ii)   where the advice and assistance relates to a criminal matter as regards which a fixed penalty, compensation or work offer has been made under section 302, 302A or 303ZA of the Criminal Procedure (Scotland) Act 1995, and the offer or any resulting measure occurring under that section is to be challenged (including by non-acceptance of the offer or by disputing whether the offer has been accepted), the sum of £105;
• (iii)   where the advice and assistance relates to any other summary criminal matter, the sum of £45;
• (iv)   where in relation to criminal proceedings before a stipendiary magistrate, or the sheriff sitting summarily, the assistance by way of representation is as described in regulation 6(1) or (2) of the Advice and Assistance (Assistance by Way of Representation) (Scotland) Regulations 2003, or regulation 6A of those Regulations otherwise than in connection with a plea of not guilty, the sum of £705;
• (v)   where in relation to criminal proceedings in the justice of the peace court (other than before a stipendiary magistrate) the assistance by way of representation is as described as referred to in sub paragraph (iv) above, the sum of £330;
• (vi)   where the assistance by way of representation relates to any other summary criminal matter, the sum of £195;
• (vii)   where the advice and assistance or assistance by way of representation relates to a solemn criminal matter, the sum of £195;
• (viii)   despite sub paragraphs (vi) and (vii), where the assistance by way of representation involves a second or subsequent diet that has been ordered by the court, the sum of £265;
• (ix)   where the assistance by way of representation relates to Parole Board proceedings, the sum of £185;
• (x)   where the advice and assistance is for personal attendance by a solicitor and the client has exercised the right to a consultation in terms of section 44 of the Criminal Justice (Scotland) Act 2016, the sum of £225;
• (xi)   where the advice and assistance is for personal attendance by a solicitor and the client has exercised a right to have a solicitor present in terms of section 32(2) of the Criminal Justice (Scotland) Act 2016, the sum of £550;
• (xii)   where the advice by way of representation is for review of a condition under section 19 of the Criminal Justice (Scotland) Act 2016, the sum of £350;
• (xiii)   where the advice by way of representation is for review of a condition of an undertaking under section 30 of the Criminal Justice (Scotland) Act 2016, the sum of £350;
• (xiv)   where the advice by way of representation relates to an application for authorisation for questioning by a prosecutor under section 36(1)(a) of the Criminal Justice (Scotland) Act 2016, the sum of £350;
• (xv)   where the advice and assistance is for personal attendance by a solicitor and the client has exercised the right to consult a solicitor under paragraph 16(6) of schedule 8 of the Terrorism Act 2000, the sum is £225, unless as part of that consultation the solicitor is present at an interview carried out in connection with a terrorist investigation or for the purposes of schedule 7 of that Act, in which case the sum of £550;
• (xvi)   where the advice and assistance is for personal attendance by a solicitor and the client has exercised the right to consult a solicitor under paragraph 37(6) of schedule 3 of the Counter-Terrorism and Border Security Act 2019, the sum is £225, unless as part of that consultation the solicitor is present at an interview carried out in connection with an investigation for the purposes of Part 1 of that schedule, in which case the sum of £550;
• (xvii)   where the advice by way of representation relates to proceedings under Part 4 of the Age of Criminal Responsibility (Scotland) Act 2019, the sum of £500.

The initial expenditure limits have automatically increased as at 1 April 2022, unless the case has concluded or a prior increase in expenditure has been granted which exceeds the new prescribed limit in any given case.

How we will deal with the application of these increases:

• An automatic increase in expenditure is being applied to all relevant cases (i.e. where the increase in fees applies to fees or outlays on or after 1 April 2022) where no increase request has been granted and we have not yet received any final account.
• In cases where this increase has been applied it will appear as per the example below when you access the account (expenditure levels will vary depending on type of A&A, in this example it is a summary criminal A&A case)

• Upon receipt of the final account we will also, at the accounts assessment stage, verify that the correct limit has been applied, failing which, we will make any necessary changes to ensure that the appropriate initial limit is applied in accordance with the regulations.

If you have any enquiries regarding this please contact:

• Accounts Assessment: Lynne Dunlop at dunloply@slab.org.uk (0131 2402 193)
• Criminal Applications: Carol Moffat at moffatca@slab.org.uk
• Civil Applications: Alison Brand at brandal@slab.org.uk

To accommodate the increased fees, we have also raised the limits of the template increases you can apply for to get additional expenditure for additional court hearings. The details are:

1. Drug Treatment and Testing Order cases (DTTO) – the template to cover up to 12 additional hearings has been increased from £1,200 to £1,500.
2. Post-Conviction ABWOR cases – the template to cover up to 6 additional hearings has been increased from £600 to £750.
3. Fixed Fee ABWOR cases – JP Courts – the template to cover up to 3 additional hearings has been increased from £100 to £150.
4. Fixed Fee ABWOR cases – Sheriff Courts – the template to cover up to 3 additional hearings has been increased from £175 to £225.

The necessary system changes are being made to ensure that grants of advice and assistance made on or after 1 April 2022, the new expenditure limits, where appropriate, will be applied. The increased duty session limits apply to work done on or after 1 April 2022.

Please contact Steven Carrie, Senior Accounts Specialist, at carriest@slab.org.uk or on 0131 240 2054 if you have any questions.