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
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
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).
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
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
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
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.