Legal Aid

The main piece of legislation in relation to Legal Aid is found in the 1986 Act as amended. [1]

Solicitors and the Scottish Legal Aid Board (SLAB) can provide detailed information on legal aid and steer individual clients on appropriate action relating to their circumstances. SLAB has a broad remit to ensure that advice and assistance is available to those who are eligible and administer the payment of legal aid to solicitors, SLAB itself does not give legal advice. For specific information on legal aid clients should always be directed either to a solicitor or to SLAB.

An understanding of the structure of legal aid available can assist advisers when dealing with clients. Such an understanding can be helpful in a range of circumstances.

The system for provision of legal aid in Scotland is necessarily complex and covers many different aspects of Scots law, including housing law. It also covers other areas of law which impact directly on housing, such as family law.

Housing law cases for which legal aid may be available include:

• rent arrears

• defending eviction

• unlawful eviction

• mortgage arrears and repossession

• repairs to a home

• problems with private landlords, including tenancy terms, appealing rent officer increases

• homelessness including reviews of local authority decisions

• antisocial behaviour which affects a person’s home

Advisers should be aware that many actions at the First Tier Tribunal Housing and Property Chamber may be eligible for Legal Aid. [2] These include:

• Eviction and rent arrears

• Recovery of unlawful premiums under the Rent Scotland Act 1984

• Applications for damages for unlawful eviction

• Applications to draw up terms of a tenancy

• Applications for wrongful termination order

If a client is likely to be eligible for Legal Aid, advisers may want to consider referring to a solicitor at an early stage. This is particularly important if the client may be at risk of eviction.

Some actions are not covered by Legal Aid. Where there is any uncertainty advisers should check with a solicitor.

A full list of the types of action at tribunal which Legal Aid may be available for can be found on the SLAB website.

Legal aid can also help people to sort out their housing law problems at different levels in the legal system including:

• initial legal advice from a solicitor (including meetings, letters and telephone calls)

• representation in court or at tribunal by a solicitor

• gathering evidence to prepare a case for court

• appeals to higher courts, including judicial review, where appropriate

• obtaining opinions from advocates

• representation in court by an advocate, or solicitor-advocate, where appropriate

• negotiation of an out-of-court settlement, either by a solicitor or an advocate.

Therefore, if it becomes apparent that a client may require legal advice and/or representation from a solicitor, or representation in court, it may be appropriate for advisers to mention the possibility of applying for legal aid to help with some (or all) of the costs associated with such legal representation.

If the eligibility criteria are met, legal aid is available to assist with legal costs on mortgage rights cases. 

Clients should be advised that any money or property awarded to them as a result of their solicitor’s work may be used to pay towards the costs of their case: this is called 'clawback'. For example, clawback may apply if a person has either ‘recovered or preserved property’ [3] in a civil legal aid case. For example, if a person has gone to court over mortgage arrears but the court has decided in their favour with the effect that they will not lose their home, this is classified as property being ‘preserved’, therefore clawback may apply.

Clients who are concerned about clawback arrangements should be advised to speak to SLAB. Depending on a client’s circumstances, repayment can be delayed either by:

• speaking to SLAB, explaining the circumstances and mutually agreeing reasonable instalments over a set period, or

• granting a ‘standard security’ in favour of SLAB so that the debt is deferred indefinitely.

Civil legal assistance is split into two main areas:

• advice and assistance, and

• civil legal aid.

It is possible for a client to receive advice and assistance but not to be eligible for civil legal aid, or vice versa. The key differences between advice and assistance and civil legal aid are:

• civil legal aid will cover a solicitor representing their client in court whereas advice and assistance will usually only cover certain aspects of legal advice (see 'Advice and Assistance and ABWOR' below), and

• different eligibility criteria are used for advice and assistance and civil legal aid.

The Legal Aid (Scotland) Act 1986 [4] contains a full definition of what is covered by advice and assistance. Briefly, it includes:

• advice given by a solicitor

• initial meetings with a solicitor to discuss the case and how to progress

• telephone discussions and negotiations by the solicitor on behalf of the clients

• letters.

In certain circumstances, civil advice and assistance funding includes representation in court by a solicitor. The type of representation that is covered here is specific and is called ‘assistance by way of representation’ or ‘ABWOR’. [5] Clients should speak to their solicitor or SLAB to see if this applies to their case.

If a case progresses beyond the initial stage of legal advice and is likely to go to court and require a full court hearing (in other words, representation in court which is different from that covered by ABWOR), the client may be eligible for civil legal aid. Civil legal aid can cover all aspects of the costs of being represented in court [6] including:

• gathering evidence for the case

• taking statements from witnesses, the client or other relevant parties

• negotiations involved in court proceedings, including reaching an out-of-court settlement where appropriate

• representation in court by a solicitor

• representation by an advocate or solicitor-advocate if the case goes to a higher court and it is not appropriate for a solicitor to represent the client.

Civil legal aid is available for a wide variety of cases, including housing law problems (see above). Provided that the application meets the general eligibility criteria set out in legislation, namely 'probable cause' and 'reasonableness to grant', [7] and also the financial eligibility criteria as set out in annual regulations, [8] legal aid is available.

Sometimes, clients who are not eligible for civil legal aid will be told that they have to pay the other parties’ legal expenses. This can happen in cases where a person from whom payment is due has lost their case in court and their opponent was eligible for civil legal aid. It can also happen where the court has ordered a client to pay expenses at the end of a case.

The financial limits on eligibility for civil legal aid changed significantly in April 2009 and the limits are updated year on year. [9]

When SLAB assess a person’s financial eligibility, they send out a statement showing the income and expenditure that has been taken into account in making that assessment. This statement also shows if that person has to pay a contribution (there is further information on paying contributions further down this page). If a client thinks that there is anything missing from that statement, or anything that has not been properly taken into account, they must get in touch with SLAB to discuss this further.

It is important to be aware that capital (such as any savings), as well as income, has to be taken into account when making the assessment. However, if the case is about money or property (such as a person’s home), then those assets will not be considered in the assessment. A clawback payment may also apply at the end of the case, depending on the outcome.

More information on the criteria can be found on SLAB's website which contains a variety of useful information and tools including an online eligibility estimator

Some clients may have to pay contributions towards any legal aid they may be awarded. Contributions towards legal aid are not to be confused with 'clawback' payments (see paragraph below). There is more information on SLAB's website.

However, it may not be necessary for clients to pay the full assessed contribution if the solicitor acting on behalf of the client can estimate the cost of the case as being less than the assessed contribution. If this happens, then SLAB can restrict the contribution and payments accordingly (although the client may still have to pay the full assessed contribution if the case eventually costs more than the solicitor's estimate).

Clients should be encouraged to speak to their solicitor or SLAB if they are worried about:

• the level of contributions they have to pay, or

• how they will be able to afford it on top of other commitments, especially rent or mortgage payments

SLAB also administer funds under a programme of ‘criminal legal assistance’. This funding is available for people who have been charged with a criminal offence and meet certain eligibility criteria. Criminal legal assistance is less likely to be appropriate for clients who require funding in relation to housing law. However, it is possible criminal law issues may arise in particular cases. Examples of situations in which criminal law issues may arise may include:

• if a client is charged with ‘breach of the peace’ related to an incident of antisocial behaviour, or

• there is a disturbance in a family home due to a domestic situation, advisers could be faced either with someone who is a victim of domestic abuse or an alleged perpetrator.

Clearly, these situations are beyond the immediate remit of housing advice. However, they may impact greatly on the client’s experience and also on their home environment or the security of their home. A solicitor with knowledge of the particular field (whether that be family law or criminal law) should always be consulted.