Home Owner & Debtor Protection (Scotland) Act 2010 - Guidance on Lay Representation

On the 6th August 2010, the Scottish Government issued guidance on lay representation in Court proceedings for homeowners faced with repossession. The guidance provides advice on the role of a lay representative and the competences expected of an approved lay representative as introduced by the Home Owner and Debtor Protection (Scotland) Act 2010.

The guidance sets out advice on how prescribed persons or bodies should approach the approval process, and how organisations should seek to manage the provision of lay representation so that the individual client receives appropriate assistance from the appropriate adviser. The guidance is designed to be read alongside the forthcoming Lay Representation in Proceedings relating to Residential Property (Scotland) Order 2010.

Definition and Role of a 'Lay Representative'

A lay representative is defined as an individual, other than an advocate or solicitor, approved [for the purposes of repossession proceedings] by a person or body prescribed by the Scottish Ministers.

Lay representatives are not supposed to replace the function of a solicitor or an advocate in court proceedings. They are to assist homeowners, who may otherwise not qualify for Legal Aid and be unable to afford the services of a solicitor, when faced with often intimidating court appearances. A lay representative is to be clear about the limits of their own competences and be able to identify when a particular case should be referred to either another lay representative, or a solicitor, with the appropriate skills and knowledge. Should the service of a solicitor become required, the lay representative should remind the individual that they may be liable for Legal Aid (and should therefore be familiar with the financial eligibility requirements of Legal Aid).

Throughout proceedings a lay representative must satisfy the Sherriff that:

He/she is a suitable person to represent the debtor/entitled resident; and He/she is authorised by the debtor/entitled resident to do so. In line with this, approving organisations are encouraged to provide their local courts with a list of lay representative approved by them and it is recommended that lay representatives themselves obtain written confirmation from the debtor/entitled resident that they are authorised to represent them at Court. When approving lay representatives, prescribed approving organisations will have to bear in mind that efficient use of the Court's time is paramount, and so the lay...