Webinars on regulations to amend civil solicitor and counsel fees, disregard certain payments when assessing eligibility and provide free A&A under the 2007 Hague Convention

We are running a series of webinars for the Legal Aid and Advice and Assistance (Miscellaneous Amendments) (Scotland) (No.3) Regulations 2023 coming into force on 21 September 2023.

The regulations will amend civil solicitor and counsel fees, disregard certain payments when assessing applicant eligibility and make provision for free Advice and Assistance to applicants under the 2007 Hague Convention.

The webinars will run until Thursday 26 October to go through the changes to the online system introduced by the regulations and other system changes implemented.

These sessions take place every Tuesday at 16:15 and Thursday at 11:45.

For more details on the webinars and how to join please see the message within Legal Aid Online (LAOL).

The Legal Aid and Advice and Assistance (Miscellaneous Amendments) (Scotland) (No.3) Regulations 2023, will:

• amend Civil Legal Aid fees payable to solicitors under Schedule 6, Chapter II to accommodate work carried out in relation to defended family and civil partnership actions in the sheriff court
• amend fees for non-appeal criminal legal aid work carried out by Counsel in the High Court, Sheriff Court and JP Court
• disregard certain new Social Security Cost of Living Payments from financial assessment and clawback in relation to Advice and Assistance, Civil Legal Aid and Children’s Legal Assistance
• make provision in relation to entitlement to free Advice and Assistance in relation to applications under the 2007 Hague Convention on International Recovery of Child Support and Other Forms of Family Maintenance.

The regulations come into force on 21 September 2023, although it should be noted that the changes introduced in respect of solicitor and counsel fees apply only in relation to fees for work done on or after 25 September 2023.

The changes to solicitor fees follow discussion with the Law Society of Scotland. The changes to Counsel fees follow extensive discussion between the Faculty of Advocates and Solicitor Advocate branch of the profession.

Our website guidance and fee tables have been updated to reflect the various changes as a result of the regulations coming into force:

• Civil legal aid block fee accounts: progress fees
• Civil legal aid block fee accounts: Continued Options Hearing – two units
• Civil legal aid block fee accounts: list of miscellaneous fees
• Civil legal aid block fee accounts: fees for preparation

We will also shortly be providing guidance on the changes made to our online system in the e-learning section of the website – see “View Case: searching and viewing your applications”.

Changes have been made to Schedule 6, Chapter II (Sheriff Court Civil Fees (Defended)), of the Civil Fees Regulations to support the changes to court rules made by the Act of Sederunt (Ordinary Cause Rules 1993 Amendment) (Case Management of Defended Family and Civil Partnership Actions) 2022(2), which are effective from 25 September 2023.

New fees are introduced for:

• the preparation of the Initial Case Management Hearing and each subsequent hearing where this is heard in isolation and for an enhanced fee to be paid where this takes place at the same time as a Child Welfare Hearing
• three new Progress Fees have been introduced where the new procedures have been engaged to cover all associated work, where appropriate, with the Full Case Management Hearing including the Pre-Hearing Meeting, related joint minute and witness summaries
• the preparation and attendance at any Continued Full Case Management Hearing.

A number of amendments are being made to Schedule 2, Parts 1 and 3 of the Criminal Fees Regulations in relation to the fees payable to counsel in relation to first instance proceedings in the High Court, Sheriff Court and JP Court.

This supports a commitment by the Scottish Government to review Counsel fees regularly and support changes in court procedure.

The changes include:

• changes to the category of certain offences and amendments that ensures all offences prosecuted in the criminal courts are now categorised
• provision for additional items of written work including the introduction of enhanced fees for the drafting of written questions in respect of vulnerable or child witnesses
• new fee structure for First Diets in the Sheriff Court to reflect how counsel is paid for the equivalent Preliminary Hearings in the High Court
• enhanced fees for those hearings when the case is one being managed in terms of the High Court of Justiciary Practice Note No.1 of 2018 on the Management of Lengthy or Complex Criminal Cases
• a standard fee is now payable for all continued Preliminary Hearings or First Diets
• changes to when fees are payable for a consultation with the Advocate Depute, Procurator Fiscal or with a solicitor.

These regulations amend the relevant legal aid regulations by adding:

• additional payments introduced to assist during the cost of living crisis via the Social Security (Additional Payments) Act 2023 and Social Fund Winter Fuel Payment (Temporary Increase) Regulations 2023

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 and, in addition, are excluded from clawback.

In relation to the winter fuel payment, it is only the temporary cost of living supplement which is to be disregarded from means assessment and excluded from clawback.  Further information.

Similar provision was made earlier this year to disregard earlier such payments and these also continue to be disregarded.

Amendments have been made to the Advice and Assistance (Scotland) Regulations 1996 to ensure that Advice and Assistance is available to applicants entitled to free legal assistance under the 2007 Hague Convention without an assessment of their income or capital or the need to pay any fees or outlays, from any expenses payable to them out of the Scottish Legal Aid Fund.

Equivalent provisions are already in place in respect of Civil Legal Aid and this will bring parity to those who are provided with Advice and Assistance.

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

Solicitor and Counsel fees: Steven Carrie, Senior Accounts Specialist E: carriest@slab.org.uk