A&A accounts and abatements

Letter on SLAB's treatment of items charged under advice & assistance, with reply from the Board

20th June 2011 | Jon Kiddie, Douglas Haggarty

I write to express my concern at the Scottish Legal Aid Board’s treatment of certain items charged under Advice & Assistance (A&A), but abated by the Board as “steps & proceedings” or “forms part of representation”.

In a number of recent accounts, the Board has made such abatements, often in relation to letters, e.g. a letter advising a client of the outcome of a procedural hearing. This is not the first occasion on which I have observed such abatements, but they appear to have become more common over recent months.

Having practised as a legal aid solicitor for over a decade, it has always been my understanding that, broadly speaking, A&A would cover correspondence, whereas civil legal aid would cover drawing up legal papers and appearing at court.

Having discussed the abatements with the Board by phone, I am still at a loss to understand the Board’s rationale and lawful authority for them.

I was told that the Board does not have authority to pay for letters (or other work) under A&A which “stem from” representing a client at court, although A&A would cover the provision of advice on the procedure regulating litigation. In support of this contention I was directed to the Civil Legal Assistance Handbook (15 November 2010), and particularly to Part II, para 1.2 and Part V, para 4.6.

These quote the definition of “representation” in s 6 of the Legal Aid (Scotland) Act (“advice and assistance provided to a person by taking on their behalf any step in instituting, conducting or defending any proceedings”), stating that representation “includes a number of steps short of actual appearance in court or before a tribunal and can only be given where ABWOR is available”, with examples, said to be “not an exhaustive list”.

Nowhere in these paragraphs is it stipulated that the Board does not have the authority to pay for letters under A&A which “stem from” representing a client at court. Part III, para.1.1 of the same Handbook provides that A&A is “oral or written advice” on a matter of Scots law provided to a person by a solicitor, not including taking “steps in connection with instituting, conducting or defending proceedings” unless ABWOR is available.

The definition of “advice and assistance” in s 6 includes “(a) oral or written advice… (ii) as to any steps which [a] person might appropriately take (whether by way of settling any claim, instituting, conducting or defending proceedings… or otherwise)…; (b) assistance provided to a person by a solicitor… in taking any steps mentioned in paragraph (a)(ii) above”.

Accordingly, it seems quite plain to me that the 1986 Act (which takes precedence over the Handbook) envisages A&A as covering the letters abated by the Board.

Where the Act clearly stipulates that “written advice” is covered by A&A, it seems to me quite wrong for the Board to use the vague comment in para 4.6, “This is not an exhaustive list”, as the basis for asserting that it does not have authority to pay for letters which “stem from” representing a client at court.

I would welcome clarification of the Board’s position in this regard, and why it seems the Board is now choosing to interpret the Act differently compared to the past, when such letters were paid for under A&A.

Douglas Haggarty, Head of Legal Services – Technical at SLAB, replies:

I have a number of comments on Mr Kiddie’s points.

The Board made several abatements on the basis that items in the accounts strayed beyond advice and assistance into the provision of ABWOR. In the cases in question, ABWOR is not available but civil legal aid is, subject to the statutory tests. However, Mr Kiddie chose to run the proceedings under A&A.

The definition of advice and assistance in s 6 provides for a wide range of activities, including those that are further defined as ABWOR: “advice and assistance provided to a person by taking on his behalf any step in instituting, conducting or defending any proceedings before a court or tribunal…”. The latter activities can only be undertaken in proceedings identified from time to time by the Government and listed in the ABWOR regulations.

The general definition of A&A therefore has to be read alongside the more specific definition of ABWOR. This makes it clear that those aspects of the general definition that cover the taking of steps in relation to proceedings on a client’s behalf, rather than assisting the client in taking such steps, apply only to situations in which ABWOR is available. In other words, in situations in which ABWOR has not been made available by regulations, the actual taking of steps is not covered and therefore cannot be paid. This applies in the cases raised by Mr Kiddie. If proceedings could be run under A&A the application of the statutory tests for civil legal aid could be avoided, offering a potential route to public funding for cases that did not meet them. This is clearly not what Parliament intended.

Mr Kiddie’s view of the broad scope of A&A and civil legal aid is too simplistic and ignores the context in which the work is done. The type of correspondence that would be payable in the early stages of many situations will no longer be payable once the solicitor has set down the road of conducting the proceedings, as in the cases raised by Mr Kiddie.

The Civil Legal Assistance Handbook serves to highlight the types of activity that would clearly be viewed as beyond the scope of general A&A and into that of ABWOR: once the solicitor is in this territory, a far wider range of activity would then fall within the scope of ABWOR. Letters confirming the outcome of representation do not stem from representation; they are representation, broadly defined. The context matters.

What Mr Kiddie has attempted to do is to shoehorn the conduct of proceedings into A&A in circumstances where ABWOR does not exist for the proceedings, rather than applying for civil legal aid and with it the protection it affords to a client. Were these cases to have been progressed under civil legal aid, most if not all the disputed account entries would have been payable as legitimate activities for a solicitor conducting proceedings.

We have indicated to the solicitor that we are happy to discuss the detail further. If Mr Kiddie remains dissatisfied with any assessment by the Board he is entitled to require taxation of his account by the auditor.