CHAPTER 10

CHANGES OF CIRCUMSTANCES AND WITHDRAWAL OF LEGAL AID

Unless the context otherwise requires, "the Act" or "the 1986 Act" means the Legal Aid (Scotland) Act 1986.

References to regulations are references to the Civil Legal Aid (Scotland) Regulations 1996, unless otherwise stated.

10.1 DUTY TO REPORT CHANGE OF CIRCUMSTANCES

In terms of regulation 23, an applicant or assisted person is under a duty of immediately informing the Board of any change

in his circumstances, financial or otherwise. While, clearly, a change in the applicant's financial circumstances - such as, for

example, a rise in salary or a termination of employment - must be reported, it may not be the financial circumstances of the

applicant alone that have been, or should be, taken into account. If it is a case where the means of a spouse or cohabitee

must also be taken into account, any change in the spouse's or cohabitee's means must be reported to the Board. Also, the

financial circumstances of other persons may be relevant, for example, where a member of the household becomes

employed and should be in a position to share accommodation costs or living expenses, or where the applicant is making a

contribution towards the support of some other person which is no longer justified because of a change in that person's

means.

The Board must also be notified of any change in the legal or factual basis of the application, whether affecting probable

cause or reasonableness or any other matter affecting entitlement to legal aid.

The prudent solicitor should also make sure such changes are reported. If legal aid is obtained or continues to be made

available when it would have been refused or terminated if a change in circumstances had been promptly reported to the

Board, but was not so reported due to fault on the part of the applicant or assisted person or his solicitor, the Board would be

bound to consider appropriate recovery action.

Changes of address should be reported as quickly as possible to avoid delays in communication relative to reassessment or

contribution matters etc.

10.2 DUTY TO REPORT ABUSE OF LEGAL AID

In the course of a case it may become apparent to the solicitor or counsel that the assisted person has adopted an

unreasonable attitude to the conduct of the case, with the result that unjustifiable expense to public funds has been or may

be incurred. It may also become evident that the assisted person has withheld relevant information or has given false or

misleading information. In such circumstances it is clear that if no action is taken an abuse of legal aid will ensue.

Regulation 24, therefore, imposes a duty on the solicitor or counsel to draw the matter forthwith to the attention of the Board.

The solicitor or counsel concerned would be obliged to make a report to the Board in terms of regulation 24 where, for

instance, the assisted person for no good reason declines the advice of solicitor or counsel as to acceptance of a tender, or

insists on prolonging the case solely on a question of expenses or with a view to procrastination, or seeks to continue an

appeal when no material advantage will accrue to him.

Regulation 24(2) provides that the duty of solicitor or counsel to report any abuse of legal aid or provide information to the

Board as required by the Act and Regulations or which may enable the Board to carry out its functions, overrides any duty of

confidentiality owed to the assisted person by reason of any privilege arising out of the relationship between solicitor, counsel

and client. This is an exception to the stipulation contained in section 31(7) of the Act that legal aid is not to affect the

relationship between solicitor, counsel and client or their respective rights.

10.3 POWER OF THE BOARD TO AMEND DETERMINATION

Where a mistake has been made in the determination of disposable income, disposable capital or maximum contribution, the

Board may, as provided by regulation 28(1), correct that mistake if satisfied it would be just and equitable to do so. Any

consequent amended determination is to have effect for all purposes as if it was the original determination.

Cases of error or mistake apart, the Board may redetermine disposable income, disposable capital and maximum

contribution, if there has been a change in an assisted person's financial circumstances to such a degree as would justify

redetermination. Regulation 28(2) specifies the extent of changed circumstances which must have occurred before a

redetermination may be carried out. So far as income is concerned, a redetermination is possible if income has either

increased or decreased by the specified amount. So far as capital is concerned, redetermination is possible only if capital

has increased by the specified amount. Redetermination is not, therefore, competent to take account of a reduction in

capital.

If the original determination resulted in the applicant being ineligible for legal aid, and there was then a change in

circumstances which might render the applicant eligible, a fresh application for legal aid would require to be submitted, as the

original determination could not be revised in terms of regulation 28(2).

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The financial limits specified in regulation 28(2) for redetermination purposes are amended from time to time.

In most cases, the Board will fix the amount of the actual contribution payable at the same amount as the maximum

contribution assessed. Where, however, the maximum contribution is substantially greater than the likely cost of the

proceedings, the actual contribution may be restricted initially to less than the maximum. The Board has power, under

regulation 28(3), to increase such a restricted actual contribution where it appears that this will be necessary to cover the

actual or estimated cost of the proceedings. The actual contribution will never, of course, exceed the maximum contribution,

whatever the final cost of the case.

10.4 SUSPENSION OF LEGAL AID

Regulation 29 gives the Board power to suspend legal aid in certain circumstances, such as, when the assisted person is in

arrears of contribution, or has not provided information or documents required, perhaps, for redetermination of contribution,

or when the Board has to consider whether, on the basis of information received, legal aid should be terminated because the

assisted person no longer has probable cause or it is no longer reasonable for the assisted person to receive legal aid, or

because the assisted person has, for example, made an untrue statement to the Board or has failed to disclose information

about his means or case.

It is important to note that legal aid is not available during suspension. Work done by a solicitor during suspension cannot be

charged under the legal aid certificate, even if legal aid is again made available after the period of suspension.

10.5 TERMINATION OF LEGAL AID ON CHANGE OF CIRCUMSTANCES

The Board may terminate a grant of legal aid if on a change of circumstances it is apparent that the assisted person is no

longer entitled to legal aid. Regulation 30 specifies the situations in which the Board may do so, that is, where it is clear the

assisted person is not financially eligible for legal aid, or where there is no longer probable cause, or where it is no longer

reasonable to give legal aid. Termination in these circumstances does not affect the assisted person's status as such in

respect of the period while the grant of legal aid was in force, and does not entitle the Board to recover its outlay from the

assisted person.

10.6 CESSATION OF LEGAL AID OTHER THAN ON CHANGE OF CIRCUMSTANCES

The Board may cease to make legal aid available in certain situations specified in regulation 31, irrespective of any change

of circumstances, where the conduct of the assisted person is incompatible with the continued grant of public funds. Under

regulation 31, legal aid may be withdrawn in the following circumstances:- where the assisted person has required the

proceedings to be conducted in an unreasonable way with the result that some unjustifiable expense is caused to public

funds; where the assisted person has failed to comply with any condition imposed under section 14(2) of the 1986 Act;

where the assisted person has failed without reasonable excuse to attend for interview or to provide information or

documents required under the regulations; and where the assisted person is in arrears with instalments of contribution.

Termination in these circumstances does not entitle the Board to recover its outlay from the assisted person or affect the

assisted person's status as such.

10.7 TERMINATION OF LEGAL AID IN CASES OF FALSE INFORMATION ETC.

The Board may terminate legal aid under regulation 32 where, after allowing an opportunity of submitting representations,

the Board is satisfied that the applicant or assisted person has made an untrue statement as to his resources or has failed to

disclose any material fact concerning them, or has wilfully failed to comply with the regulations by not furnishing material

information concerning anything other than his resources, or has knowingly made an untrue statement in furnishing such

information.

In any of these circumstances, and whether or not legal aid is terminated, the Board has the right to recover its whole outlay

from the assisted person concerned, and in addition the assisted person is deemed for the purposes of sections 18 and 19 of

the 1986 Act never to have been an assisted person. In other words, the assisted person will not be entitled to apply to the

court for modification of liability for expenses in respect of the period during which he was in receipt of legal aid. Other

consequences of such conduct on the part of the assisted person are that the assisted person cannot avail himself of the

special urgency provisions, or indeed obtain legal aid, in relation to any later stages of the same proceedings in the same

court, and is not entitled to legal aid in any appellate proceedings unless the Board considers there is special reason to make

legal aid available for such appellate proceedings.

It should, of course, be borne in mind that by virtue of section 35 of the 1986 Act any person seeking or receiving legal aid

who wilfully fails to comply with any regulations as to the information to be furnished by him or for the purpose of obtaining

legal aid knowingly makes any false statement or false representation shall be guilty of an offence. The Board's

Investigations Unit will report direct to the procurator fiscal cases where it appears that there has been a contravention of

section 35.

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10.8 SUSPENSION PRIOR TO POSSIBLE TERMINATION OR CESSATION

Where it is competent for the Board to cease to make legal aid available under regulation 30(b), 31 or 32, it is also

competent for the Board to suspend the legal aid under regulation 29 to allow an opportunity of considering any relevant

information received. Suspension would prevent any further costs being incurred while the matter is under consideration.

Any work done during suspension cannot be charged under the legal aid certificate, even if legal aid is again made available

after the period of suspension.

10.9 RIGHT OF OPPONENT TO REPORT MATTERS TO THE BOARD

Having responsibility for the administration of public funds, the Board is entitled to have regard to any information suggesting

that a grant of legal aid may be inappropriate or incorrect or is being abused. Regulation 32A confirms the right of any

opponent who has reason to believe that there is any matter which might cause the Board to amend a determination under

regulation 28, suspend legal aid under regulation 29 or cease to make legal aid available under regulations 30, 31 or 32, to

draw the matter to the attention of the Board.