Civil Legal Aid in Scotland

Legal Aid in Scotland

Legal aid is the system of public funding to help meet the costs of legal advice, legal assistance, or representation in a court or tribunal setting. The Scottish Legal Aid Board (“SLAB”) administers legal aid in Scotland via a network of solicitors registered to provide legal assistance in civil and criminal matters.

Categories of legal aid

The Scottish legal aid system comprises several categories of help. Each category has its own rules in terms of the types of proceedings in which legal aid is available, as well as the relevant eligibility thresholds. The following gives an overview of legal aid for civil law matters.

Advice and assistance

Advice and assistance – defined in section 6(1) of the Legal Aid (Scotland) Act 1986 – covers oral or written advice provided by a solicitor (or advocate, where appropriate) on the application of Scots law to the particular circumstances of a case. It can also cover advice and assistance on issues such as settlement, starting proceedings and the making of legal instruments (for example, wills).

Under section 6(1)(a) of the 1986 Act, advice and assistance can be provided to a “person” (not a company or partnership), including an individual under 16.

Guidance from SLAB details the types of cases approved for standard advice and assistance.

Legal professionals can give advice and assistance on matters of Scots law that derive from UK law, but only where a remedy can be granted within the jurisdiction of the Scottish legal system.

Financial eligibility criteria

Applicants may be eligible for advice and assistance if, firstly, their capital comes within the set thresholds, and thereafter depending on their disposable income levels. They may have to pay a contribution towards any legal services received, according to income.

Where the value of an applicant’s capital exceeds the threshold, financial help for advice and assistance will be denied. However, for those of pensionable age, capital disregards can be applied.

SLAB has produced an advice and assistance estimator to help calculate eligibility.

Assistance by way of representation (“ABWOR”)

ABWOR is defined in section 6(1) of the Legal Aid (Scotland) Act 1986, under which a legal professional can act on an individual’s behalf by representing him or her before a court, tribunal or statutory inquiry. They can also take steps to institute, conduct or defend proceedings. ABWOR can be made available for a range of proceedings, including some tribunal proceedings.

Financial eligibility criteria

The eligibility thresholds are the same as those for advice and assistance. Some “prescribed proceedings” are exempt from financial assessment and no contributions will be payable in relation to ABWOR – for example, proceedings before the Mental Health Tribunal for Scotland. The relevant proceedings are set out in Regulation 9 of The Advice and Assistance (Assistance by Way of Representation) (Scotland) Regulations 2003 (“the ABWOR Regulations”).

Merits tests

Regulation 13 of the ABWOR Regulations sets out various tests which SLAB may apply when assessing whether to award ABWOR. There are two main tests: ‘interests of justice’ or ‘effective participation’. Merits tests will be applied, for example, when considering applications relating to the Employment Tribunal and various First and Upper Tier Tribunal Hearings.

Civil legal aid

Section 13 of the Legal Aid (Scotland) Act 1986 defines civil legal aid. It encompasses representation by a solicitor or advocate in proceedings permitted under the Act. Civil legal aid includes any assistance that is given before proceedings, that is incidental to proceedings, that is given in relation to a settlement, or in bringing proceedings to an end.

Schedule 2, Part I, para 1 of the 1986 Act sets out in which courts legal aid is available for civil proceedings.

Schedule 2, Part II of the 1986 Act sets out the type of proceedings for which civil legal aid is not available.

Financial eligibility criteria

Section 15 of the Legal Aid (Scotland) Act 1986 sets out the eligibility thresholds for disposable income and disposable capital, which may be revised periodically by the Scottish Government.

Guidance from SLAB details how income is calculated, what is included and what may be disregarded. The guidance includes a list of state benefits that will be disregarded as part of an income assessment.

All forms of capital will be included in a financial assessment, with some exceptions.

The resources of a spouse or partner may also be taken into account.

Applicants may need to pay a contribution towards their legal costs, depending on where their disposable income and capital lies within the threshold limits.

The SLAB civil legal aid estimator can help applicants work out if they meet the financial eligibility criteria.

Other eligibility criteria

Under section 14(1) of the Legal Aid (Scotland) Act 1986, SLAB must also be satisfied of the following before granting civil legal aid:

• that the applicant has a plausible legal basis for taking court action, and
• that it is reasonable in the particular circumstances of the case that the applicant should receive legal aid.

SLAB has produced a tool to enable solicitors and applicants to find the relevant merits tests according to case type.

Further information

The Scottish Legal Aid Board has published a number of information resources, including the following on the application process and threshold levels for financial eligibility:

Applying for legal aid: step by step

Advice & assistance and civil legal aid keycard – Scottish Legal Aid Board (slab.org.uk)

Alternative sources of support

The Scottish Government has issued a guide on getting help with a legal problem: Help with a legal problem – mygov.scot.

It also has a guide on the availability of legal aid: Legal aid – mygov.scot

The Scottish Government page on alternatives to legal aid provides information relating to other sources of legal and advisory support.

Disclaimer

The Commons Library does not intend the information in this article to address the specific circumstances of any particular individual. We have published it to support the work of MPs. You should not rely upon it as legal or professional advice, or as a substitute for it. We do not accept any liability whatsoever for any errors, omissions or misstatements contained herein. You should consult a suitably qualified professional if you require specific advice or information. Read our briefing for information about sources of legal advice and help.