The Legal Aid and Advice and Assistance (Scotland) (Miscellaneous Amendments) Regulations 2019, to increase fees by 3%

Regulations to increase solicitor and advocate fees for legal aid and advice and assistance by 3% are due to come into force on 26 April 2019.

The increase was announced by the Minister for Community Safety, Ash Denham, as part of the Scottish Government’s wider response to Martyn Evans’s independent review of legal aid.

The fees’ uplift is being undertaken as an interim measure while longer term reforms to the legal aid system in Scotland can be developed. This includes the collaboration 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 (Scotland) (Miscellaneous Amendments) Regulations 2019, 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 regulations allow for the fee increase, with the exception of the undernoted proceedings, to apply to fees for work done on or after the 26 April 2019.

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); 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 26 April 2019.

Schedules 1, 1A and 1B of the Criminal Legal Aid (Fixed Payments) (Scotland) Regulations 1999, have been amended so that the references and fees relating to proceedings which are marked for prosecution before a Stipendiary Magistrate have now been removed. The Glasgow Stipendiary Magistrates Court ceased to operate in April 2016.

A copy of the regulations are available here. The Legal Assistance Handbooks will be updated to reflect the changes to the fees.

To assist you in claiming the fee increase 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 and whether it is a paper or an online account.

The way the system will work is that the old on-line system (FAMS) will only be available where there has been a previous claim for that reference number. Where any previous claim relates to counsel you will automatically be directed to the new system.

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 are do not propose to make changes to a system that 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.

Where you submit your account online on the new system you will see the following screen:

Where you select ‘Save & Continue (online)’ 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.

For more information

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