Terminating grants of legal aid guidelines

Where a person has a grant of legal aid for a particular type of matter and the policy has been amended to either:

• make it a type of matter which is excluded under the policy, or
• a matter for which aid is no longer available,

aid should not be terminated, unless the Legal Aid NSW Board made provision for all such current grants to be terminated.

In making a decision to terminate a grant of legal aid where a legally aided person no longer satisfies the means test, the determining officer should take into consideration:

• whether to exercise discretion in accordance with Means Test 1.4.9.1 to 1.4.9.4 (Discretions). It may be appropriate, for example, to increase the initial contribution amount rather than terminating a grant of aid.

Where a legally aided person no longer satisfies the relevant merit test, legal aid must be terminated. Prior to terminating legal aid, the officer must ensure the notification requirements as set out in policy 6.6.2  Before terminating legal aid have been followed.

See Termination Guideline 6.9 for notification requirements.

In making a decision to terminate a grant of legal aid where a legally aided person has breached a condition of the grant of legal aid, the determining officer should take into consideration the criteria set out in the relevant guideline below.

6.4.1 - Where a legally aided person fails to pay an initial contribution

In making a decision to terminate a grant of legal aid where a legally aided person has failed to pay an initial contribution, the determining officer should be satisfied that the legally aided person:

• is aware that a contribution amount has been imposed and that the due date for payment has passed
• has capacity to pay the contribution amount, and either:
• • discretion has been exercised to reduce the contribution amount, or
  • Legal Aid NSW is satisfied that it is not appropriate to reduce or waive the contribution amount
• has been advised that the contribution may be appealed
• does not have a pending appeal in the same matter regarding the contribution.

6.4.2 - Where a legally aided person fails to co-operate with Legal Aid NSW and/or their lawyer

In making a decision to terminate a grant of legal aid where a legally aided person has failed to co-operate with Legal Aid NSW and/or their lawyer, the determining officer should take into consideration the following:

• the obligation of the legally aided person to co-operate includes:
• • attending appointments with his or her lawyer
  • responding where required to correspondence within a reasonable timeframe
  • providing adequate and reasonable instructions to enable the lawyer acting to provide proper representation in the matter, and
  • accepting reasonable advice from their lawyer for example in relation to the acceptance of an offer of settlement.

Note: As a client is entitled to test the prosecution case, a failure to provide reasonable instructions or to accept reasonable advice would not ordinarily be a reason for terminating a grant of legal aid in criminal matters where a client instructs their lawyer to plead not guilty, and refuses to accept their lawyer's advice to plead guilty. In certain circumstances, the determining officer may consider transferring the matter to another lawyer: see Representation policy 6.3.3.4 Reassignment of criminal matters. 

• whether the legally aided person's failure to co-operate may be due to:
• lack of access to transport and the distance required to travel to an appointment that may affect their ability to attend an appointment
  
• • the scheduling of appointments coinciding with days of religious or cultural observance
  • any other relevant religious or cultural issues that may affect their ability to attend an appointment
  • a mental health problem or intellectual disability that affects their ability to attend an appointment and/or give proper instructions and/or accept the reasonable advice of their lawyer
  • a physical disability or poor health which affects their ability to attend an appointment and/or to give proper instructions
  • childcare responsibilities that affects their ability to travel to and attend appointments
  • loss of capacity (see Termination guideline 6.8) or misadventure, and
• whether the legally aided person's failure to co-operate is likely to be resolved by transferring the matter to another lawyer.

Note: where there is an irretrievable breakdown of the lawyer/client relationship: see also Termination guideline 6.9.

In making a decision to terminate a grant of legal aid where a legally aided person has engaged in violent or threatening behaviour, the determining officer should take into consideration:

• the reasons for the legally aided person's behaviour, including whether the legally aided person has a history of mental health or other medical problems which may affect their behaviour, and
• whether it may be appropriate in the circumstances to transfer the matter to another lawyer.

In making a decision to terminate a grant of legal aid where a legally aided person no longer wants the grant of aid, the determining officer should be satisfied that:

• Legal Aid NSW has been notified in writing by the legally aided person, their lawyer or other authorised person that the legally aided person no longer wants the grant of aid, or
• the grant of legal aid has otherwise been abandoned by the legally aided person.

Note:

• the date of termination is the date on the written notification of termination that is sent to the legally aided person by Legal Aid NSW
• a legally aided person is not able to withdraw their application for aid once aid has been granted
• before terminating a grant of legal aid in these circumstances, the determining officer should, where possible, advise the client that:
• • they cannot have their grant of aid reinstated following termination, and
  • if they subsequently want a grant of aid for the same matter they will need to apply for a new grant of legal aid.

Legal aid should be terminated once Legal Aid NSW is notified that a legally aided person has died.

Note: where a legally aided person dies during court proceedings and/or negotiations, the determining officer should consider making a grant to the applicant's estate, legal personal representative, or other appropriate and eligible party to enable the lawyer to finalise the matter.

In making a decision to terminate a grant of legal aid where a legally aided person has suffered loss of capacity, the determining officer should be satisfied that termination of the grant of aid is reasonable in the circumstances taking into consideration:

• the status of the proceedings
• whether the legally aided person is yet to give evidence and is a central witness in the matter
• advice from the lawyer/s who has conduct of the matter
• the likelihood and timeframe of the client's recovery, and
• whether to make a separate grant to a tutor or other appropriate and eligible party to enable the lawyer to finalise the matter or to advise the court.

A grant of legal aid should not be terminated because of a general breakdown in the lawyer/client relationship. The determining officer should instead consider transferring the matter to another lawyer.

Note: see Termination policy 6.6.1 When can legal aid be terminated? for circumstances when a grant of aid may be terminated. See Representation policy 6.3.3.4 Reassignment of criminal matters. .

Before legal aid is terminated, the determining officer must notify the legally aided client in writing, and:

• provide the reason(s) why termination of the grant is considered appropriate, and
• provide that person with reasonable opportunity to make submissions to Legal Aid NSW as to why the grant should not be terminated, and
• explain what, if any, costs implications may arise as a result of termination under ss 41 and 47 of the Legal Aid Commission Act 1979 (NSW).

Note: written notification is not required where:

• the matter is a Local Court criminal matter, or
• an impending hearing date makes notification impractical, or
• the legally aided person no longer wants the grant of aid, or
• the legally aided person has died or no longer has capacity, or
• it is otherwise not reasonable in the circumstances.

Once legal aid is terminated, the determining officer must:

• advise the client in writing within fourteen (14) days of the date of termination, and
• document the reasons for terminating legal aid, and
• inform the client of his or her right to appeal against the decision to the Legal Aid Review Committee, and
• notify each lawyer acting for each party to any civil or family proceedings to which that person is a party or, where no lawyer acts on behalf of a party, to the party within thirty-five (35) days of the date of termination.