Regulations to increase solicitor’s legal assistance fees and introduce revised payment arrangements for summary and solemn criminal legal aid come into force on 29 April 2023

The Legal Aid and Advice and Assistance (Miscellaneous Amendments) (Scotland) (No.2) Regulations 2023, will:

• introduce revised and enhanced payment arrangements in respect of solemn legal aid and summary criminal fixed fees which will deliver an overall increase in fees payable for these cases of 10.25%
• uplift all other criminal fees not affected by those reforms by 10.2%
• uplift all civil and children’s fees by 10.2%
• uplift solemn fees for cases charged under schedule 1 (the current payment arrangements) by 3.3%.

To complement those fee increases, there will also be:

• increased initial expenditure limits for cases under advice and assistance and ABWOR in most cases; and
• increases to the duty session limits.

The regulations come into force on 29 April 2023, and are introduced following extensive negotiations  between the Scottish Government, Law Society of Scotland, Scottish Solicitors Bar Association and SLAB.

They seek to deliver a long-standing commitment by Scottish Government to fairly remunerate solicitors and simplify the fee system via a combination of targeted fee reforms and uplifts and overall increases.

Our website has been updated to reflect the changes to the fee levels.

We have also published the following accounts guidance to cover cases which are chargeable under the new arrangements. The new guidance is clearly marked to show it comes into force on 29 April 2023. A link is available where relevant to the guidance in force prior to 29 April 2023.

• Criminal fixed payment accounts
• Solemn accounts

We have also published on our policy statements and decision-makers’ guidance in respect of the criminal reform aspects of the regulations, namely summary criminal fixed payments and revised solemn payment arrangements.

The fee increases apply to fees for work done on or after the 29 April 2023, subject to the exceptions below.

Where the work is conducted over more than one date, the fee that applies is determined by 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.

Exceptions

For work which is chargeable in the situations listed below the increased fees apply only in relation to a case where the criminal legal assistance concerned is granted or made available on or after 29 April 2023:

• Schedule 3, Part II, Regulation 17(1B), where the equivalent of a fixed payment can be claimed where certain criteria is met prior to a complaint being served
• 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)
• Criminal Legal Aid (Fixed Payments) (Scotland) Regulations 1999 in relation to summary criminal legal aid and summary criminal ABWOR.

The revised payment arrangements the “criminal reforms” aim to deliver a long-standing commitment by Scottish Government to significantly simplify the payment system while addressing concerns that the previous solemn payment system under-compensates solicitors for the work involved in the early preparation and resolution of cases where this is both possible and in the best interests of clients.

As well as delivering an increase in payment for cases that resolve prior to trial, the reforms:

• reduce administrative costs for solicitors associated with the preparation of bespoke and often complex detailed accounts
• facilitate faster payment of accounts to solicitors and will thus improve cash flow
• reduce the scope for abatement of accounts and subsequent negotiation seeking additional payments
• ease the submission of accounts via simpler digital systems; and
• enhance payments for the conduct of hearings.

The revised fee structure introduces a new Table of Fees (Schedule 1A, Parts 1 and 2) and simplifies the fee structures by extending the use of inclusive or block fees for all work the case except travel and for time at court. The updated fee tables are available on our website.

A detailed ‘Notes on the operation’ accompany the new fee table and set out the rules for when a fee is and is not chargeable.

Some elements of the pre-existing feeing structure is maintained but there are block fees for more stages of the case. The following existing block fees remain largely unchanged (other than in respect of the general increase in fee levels):

• Petition/Full Committal fee
• Bail Appeal fee
• Post-Conviction fee

New block fees will be introduced for:

• Communications of any kind
• Perusal
• Preparation depending on how the case is disposed of.

Detailed fees will continue to be paid for travel and time spent at court, where appropriate. An enhanced rate will be payable where the solicitor conducts the case or for sitting behind counsel compared to waiting at court.

Each block fee is capable of being charged, where appropriate, based on the circumstances and progress of each case.

The reforms significantly simplify the summary criminal fixed payment arrangements so that full payment can now be achieved in the overwhelming majority of cases via a single all-encompassing fee. This will, in many respects, revert to the original streamlined structure of the fixed fee, removing the effects of a number of intervening regulations that have sought at various points to modify the payment in certain circumstances and which has, in turn, added complexity to the process as a result.

The changes mean that a full and enhanced core fee is now payable where a solicitor:

• acts for more than one assisted person – this is instead of 40% of the fee in respect of a second accused and 20% of the fee in respect of a third and each subsequent accused
• provides relevant ABWOR in respect of more than one complaint – this is instead of 40% of the fee in respect of a second accused and 20% of the fee in respect of a third and each subsequent accused
• represents an accused person where the duty solicitor appears on their behalf at the outset – instead of a half fee
• acts in relation to proceedings in respect of breach of bail conditions under section 27(1)(b) of the 1995 Act or paragraph 1(1)(a) or (c) of schedule 1 of the Criminal Justice (Scotland) Act 2016- instead of a half fee.

Other changes include:

• The JP ABWOR core fee is increased in line with the summary criminal legal aid fee, taking it from £170.35 to £347.92. This enhanced core fee will be brought into line with the scope of the fee payable in the sheriff court under schedule 1B to absorb all other fees payable in the case with the exception of the fees payable:
  • in respect of the third or subsequent diets of deferred sentence
  • representation at a first or second diet of deferred sentence where the court considers a report under section 203 of the 1995 Act and the case is disposed of; and
  • work in relation to any bail appeal.
• A simplified fee structure for trials for a trial or proof in mitigation for the second and each subsequent day in the sheriff court
• The same approach is adopted for trials in the JP court, with enhanced fees for the first day beyond 30 minutes and for a second and subsequent day
• Payment of a standard fee for third and subsequent deferred sentence diets in respect of each complaint. This removes the complex process of accounting in cases where the hearing relates to more than one complaint.

In order to support this significant package of improvements, a small number of fees, most of which are engaged very infrequently, will be incorporated into the enhanced core fees including:

• The supplementary fee where that assisted person has been remanded in custody at or subsequent to the first calling at the case and is at any time during that remand under 21 years of age (although this fee will continue to be payable in a court which has been designated as a drug court by the sheriff principal)
• Notional trial diets where at an adjourned trial diet no evidence is led
• In the JP court where the solicitor conducts a special reasons proof, hearing on exceptional hardship or back-duty proof.

To accompany the revised payment arrangements changes have been made to our systems which significantly simplify the process for making claims online.

All claims submitted under the revised payment arrangements must be made online.

Full guidance on how to submit the claims is available in our e-learning section.

The duty session limits have been increased to ensure that they will continue to cover the same level of work or number of accused persons as they would have prior to these regulations coming into force.

The new limits apply only in relation to a case where the grant of advice and assistance or ABWOR was made on or after 29 April 2023.

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 from us 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:

(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 us is to be treated as if it were so, the sum of £135;

(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 £50;

(c)(i)   where the advice and assistance relates to a criminal matter as regards which a summary complaint has been served, the sum of £115;

(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 £115;

(iii)   where the advice and assistance relates to any other summary criminal matter, the sum of £50;

(iv)   where in relation to criminal proceedings before 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 £750;

(v)   where in relation to criminal proceedings in the justice of the peace court the assistance by way of representation is as described as referred to in sub paragraph (iv) above, the sum of £500;

(vi)   where the assistance by way of representation relates to any other summary criminal matter, the sum of £215;

(vii)   where the advice and assistance or assistance by way of representation relates to a solemn criminal matter, the sum of £215;

(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 £290;

(ix)   where the assistance by way of representation relates to Parole Board proceedings, the sum of £215;

(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 £250;

(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 £600;

(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 £385;

(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 £385;

(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 £385;

(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 £250, 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 £600.

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