The Legal Aid and Advice and Assistance (Miscellaneous Amendment) (Scotland) Regulations 2021, to increase fees by 5%

Regulations to increase solicitor and advocate fees for legal aid and advice and assistance by 5% are due to come into force on 22 March 2021. The regulations are available on legislation.gov.uk.

The increase follows a series of meetings with the Law Society of Scotland and the Justice Secretary Humza Yousaf, who confirmed that there would be a package of support measures to help those experiencing hardship as a result of Covid-19. The increase in fees is the first tranche of a 10.25% uplift in fees to be delivered over the next two financial years.

The fees’ uplifts 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 2021, 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

When will the fee increases be applied?

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 22 March 2021.

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.

Exceptions

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 22 March 2021.

Minor textual amendments have also been made in schedules 3, 6 and 7 to amend the wording in the fee tables in the 1989 Civil Regulations, and in schedule 7 to amend the wording in one of the fee tables in the 1999 Fixed Payment Regulations, in order to correct errors or clarify the meaning of existing provisions.

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

Legal Aid Online

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 on-line 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 we will calculate the amount due and process this as a separate supplementary payment which will be done on the same day.

Amendments to Criminal Counsel Fees

In addition to a 5% increase in fees two further amendments are being made in relation to the provisions for criminal counsel:

• A new regulation 10ZA, into the 1989 Criminal Fees Regulations, is being introduced which provides that counsel may be paid an additional fee for preparation of the note of appeal, and where applicable counsel’s opinion on the merits of an appeal, for the purposes of proceedings under section 107 of the Criminal Procedure (Scotland) Act 1995. The additional fee can only be paid where the Scottish Legal Aid Board determines that an assisted person would otherwise be likely to be deprived of effective legal assistance as a result of the amount of fees payable to counsel; and
• Schedule 2 of the 1989 Criminal Fees Regulations, is amended to provide that during a trial diet where a leading junior counsel, upon the unavailability of junior counsel being led, has sought and been granted leave of the court to continue alone then they may continue to be paid as leading junior counsel.

For more information

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