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Guidelines

6. Legal Aid Review Committee Appeals

6.3. Preparing a report to the Legal Aid Review Committee

6.3.1 Introduction

When an appeal is lodged, an officer of the Grants Division of Legal Aid NSW is responsible for preparing and submitting a  report to the Legal Aid Review Committee (LARC Report).

For in-house matters, the in-house solicitor who made the decision being appealed is required to assist with the preparation of the LARC Report. This will include providing details of their recommendation regarding the appeal, the relevant policies and guidelines that the recommendation is based on, and any supporting material used in the decision-making process.

An officer of the Grants Division of Legal Aid NSW is not required to prepare a LARC Report for appeals lodged with respect to decisions that explicitly do not carry a right of appeal under ss56(1A) & ss56(1AA) of the Legal Aid Commission Act 1979 (NSW).

See section 6.3.8 of the appeal guidelines for guidance on handling such appeals.

6.3.2 What to include in the LARC Report

The report must include:

  • a brief history of the matter which is the subject of the appeal, including the reasons for the determination
  • any hearing date/s
  • the file number and application number
  • reasons why the appeal has been lodged out of time, if known
  • the following details of the appellant
    • name
    • address
    • date of birth
    • occupation
    • number of dependants
    • relevant financial particulars


6.3.3 Dates of hearings

The date of hearing of a matter or other relevant court attendance date must be noted in the LARC report, including any court dates which have passed.

If the court date has passed by the time the Legal Aid Review Committee meets, the Legal Aid NSW solicitor rostered to assist and advise the Committee must contact the solicitor with carriage of the matter to obtain the details of what occurred at the court attendance and subsequently (if applicable) so they can report to the Committee.

It is important that the Legal Aid Review Committee has the most up to date information as the Committee stands in the shoes of the determining officer.


6.3.4 Does the content of the LARC report address relevant issues?

LARC reports must address issues which are clearly relevant and have been raised by the appellant. As the Legal Aid Review Committee stands in the shoes of the determining officer, the Committee must be provided with all relevant material that the determining officer used to make their decision, plus all additional material provided by the appellant with their appeal.


6.3.5 Additional support material to be included with LARC report

The Committee must be provided with all the material the determining officer used to make the decision being appealed.

In addition to this, the Committee can be provided with any other material that is readily accessible and relevant to the appeal, including additional material provided by the appellant in support of the appeal.

Regardless of the reason for the refusal/variation, the Legal Aid Review Committee must be given all material necessary to make a decision on:

  • the test of whether it is a matter for which legal aid is available
  • means
  • merit (if appropriate).

Relevant sections of Legal Aid NSW policy or guidelines should be copied and pasted into the report from Policy Online.

The following list contains (but is not limited to) some of the primary documents to include as support material.

Family Law

Criminal and Civil Law

Refusal letter

Refusal letter

Legal aid application

Legal aid application

Affidavits

Affidavits

FDR conference chairperson's report

Barristers advice

Application for Orders/

Response

Fact sheet

Court orders

Judgment/Reasons for decision

Family report/single expert report

 

Discretions

The Committee also needs to know what discretions were available in relation to the decision being appealed, so that they can determine whether relevant discretions are to be exercised.

See Delegation Instrument for relevant delegations.


6.3.6 Summarise when large amount of support material

It would assist the members of the Legal Aid Review Committee if material could be summarised in some way; for example:

  • lengthy court transcripts should be summarised or
  • an index or chronology should be provided where many individual documents are annexed.

If this summary material is not provided, in some cases the report and file may be returned to the officer who prepared the report for amendment.


6.3.7 Has the correct Legal Aid NSW policy been applied?

While the solicitor rostered to assist and advise the Legal Aid Review Committee is required to read and understand the LARC reports and the policies applied in those matters, determining officers should ensure they have applied the correct policy in the first place.


6.3.8 Has the appellant a right to appeal?

Section 12.4 of the appeal policy sets out the circumstances when a legally assisted person or a legal aid applicant cannot appeal a decision in relation to a grant of legal aid.
These circumstances include decisions which explicitly do not carry a right of appeal to LARC under ss56(1A) & ss56(1AA) of the Legal Aid Commission Act 1979 (NSW) including:

  • failing the Means Test in Local Court criminal matters,
  • contributions imposed in Local Court criminal matters, and
  • where Legal Aid NSW nominates a particular legal practitioner to represent the legally assisted person.

To maintain the independence of LARC, the appeal is to be forwarded to LARC and the appellant notified by the LARC Secretariat that there is no right of appeal to LARC against the decision.

The procedure for alerting the LARC Secretariat is set out in the Grants Division Procedures Manual.


6.3.9 Forwarding the LARC Report and other material to the Legal Aid Review Committee Secretariat

Grants officers forward to the LARC Secretariat copies of all documents that are on the electronic ATLAS file, including:

  • the LARC report
  • the appeal form
  • material in support
  • all extensions
  • any correspondence/emails


Date Last Published: 30/01/2017
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