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12. Terminating Legal Aid

12.4 Where a legally aided person breaches a condition of the grant of legal aid

12.4 Where a legally aided person breaches a condition of the grant of legal aid


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.


12.4.1 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.


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12.4.2 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 12.3.4.

  • 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 Guideline 12.8) 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 Guideline 12.7.


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