Most legal aid fund expenditure is on legal services provided by solicitors in private practice who are paid on a case by case basis.
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Civil and children’s legal aid
Every year thousands of parents in Scotland need legal aid for cases about access to their children and decisions about who a child should live with.
Families going through divorce or separation can access legal aid too, to make sure things are settled properly and fairly.
If a spouse needs a protection order to keep them safe, legal aid can help.
Legal aid is also often needed if a loved one becomes unwell and is not able to make their own care decisions.
As well as cases relating to the family, legal aid is available in Scotland for other civil matters concerning housing, debt, immigration, making a court appeal, or challenging the decisions of a government body by judicial review.
There is a separate legal aid procedure for cases going through the Children’s Hearing system.
This provides advice and assistance, with solicitors typically providing information on what to expect, the decisions that can be made and how to appeal.
The legal advice and assistance for this also covers certain court hearings.
Legal aid for criminal cases
If someone is arrested or charged with a crime legal aid can help ensure the accused receives the representation he or she needs.
Criminal legal aid is usually granted subject to the accused financial circumstances if the accused is:
is likely to go to prison if convicted
is likely to lose his or her job if convicted
can’t understand what’s happening in the trial because of a mental or physical disability or English isn’t the accused’s first language
is being kept in custody until a trial
is charged with a serious offence on petition under solemn procedure (this means it’s likely there will be a trial with a jury)
Financial eligibility criteria differ for civil and criminal cases
Applicants may be eligible for advice and some financial assistance in civil cases 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.
Section 15 of the Legal Aid (Scotland) Act 1986 states that “a person shall be eligible for civil legal aid if his disposable income does not exceed £26,239 a year. A person may be refused civil legal aid if— his disposable capital exceeds £13,017; and it appears to the Board that he can afford to proceed without legal aid.”
Eligibility is different for an applicant seeking legal aid in criminal cases.
Simon Brown, who is a defence solicitor lawyer and president of the Scottish Solicitors Bar Association, told The Herald that applicants for legal aid for a criminal case at either the Sheriff or High Court face a financial assessment.
“Someone on one of the main benefits such as universal credit would automatically qualify for legal aid. But if someone is working and has a net income (after paying bills such as rent or mortgage, council tax and any loans) over around £220 to £230 a week then they wouldn’t qualify.
“The legal aid board is slightly flexible [when it comes to savings] but in general terms if someone has more than around £1200 in the bank, the person won’t qualify.”
Mr Brown said theoretically the financial threshold is the same whether the person applying for legal aid is going before the Sheriff Court or High Court.
However, he said usually the legal aid board were “more flexible” in regards to a person’s finances if they were facing proceedings in the High Court.
“They can be more flexible if someone is facing proceedings in the High Court as they know the accused will need an advocate – which is very hard to secure without the benefit of legal aid.
“They will be a bit more flexible in terms of getting legal aid but it is still really the same limit. Anyone with a net income of more than £250 a week in either court and savings of £1500 tops is unlikely to get legal aid.”
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Where does legal aid funding come from?
When the requirement is met, a legal aid application can never be refused by the Scottish Legal Aid Board (SLAB).
The body receives an uncapped budget from the Scottish Government annually, meaning ministers must pay whatever fee is necessary each year.
The cost of legal aid has been increasing in recent years, with £151 million spent in the year up to March 31 2024. It is up 12% from the previous year.
In this financial year, it is expected to rise to £171m.Â
