Conditions of Legal Aid

Conditions
Full and continuing disclosure of relevant information
Acceptance of your advice
Contributions
Payment to the Commission of costs recovered in litigation

Conditions
A grant of legal aid is subject to conditions that bind your client from the time she or he accepts aid. Breach of any of the conditions may lead to termination of aid. It is therefore very important that your client understands them. We have listed them in detail below.

The conditions appear in the legal aid application form cover, which your client should keep for reference - please do not send it in to us. (A copy of the current legal aid application form is included in Forms).

The conditions are again sent to your client on a separate form enclosed with the letter advising that aid is granted. If your client needs any further information about the conditions of aid, you are welcome to refer him or her to the assigning officer, statutory charges officer or client relations officer to clarify the point. Please note that mistaken client expectations about the conditions of aid are a major source of client complaint both to us and to the Conduct Board.

 

Full and continuing disclosure of relevant information

Disclosure of financial circumstances
Advising the commission as to merit
Advising the commission of change of address

Both you and your client must inform us of everything that is relevant to the application for aid and the grant of aid.

Disclosure of financial circumstances

It is a condition of the grant of aid that your client must tell us of any changes in her or his financial circumstances, good or bad. Your client must make and keep making full disclosure of his or her financial situation and that of any financially associated person.

If it later turns out that your client has misrepresented his or her situation to us, not only will aid be stopped, but we will require to be restored to the financial position that we would have been in if the correct information had been given at the outset. If your client has knowingly misled us, they may also be guilty of fraud.

Changes in the client's financial circumstances include such things as:

  • getting or losing a job
  • inheritances
  • marrying or forming a de facto relationship
  • separating from a spouse or de facto partner
  • a change in the number of dependants for whom the client is responsible
  • becoming entitled or disentitled to a pension or benefit
  • receiving a payment from a superannuation fund or insurance policy
  • lottery wins
  • travelling overseas, however funded
  • becoming self-employed
  • becoming entitled to a payment of compensation or damages
  • becoming a beneficiary of a trust or director of a company.

These are just examples. Any changes in their or their financially associated person's financial circumstances must be reported and can affect eligibility.

To tell us of such changes, please send a current financial statement, and copies of any relevant documents. We will review your client's eligibility for aid and let you know whether aid is to continue, and on what terms. We may stop aid, or vary the assessed contribution.

Advising the Commission as to merit

You should also let us know at the outset and as the case progresses your opinion of the merits. If merits change, the grant of aid will cease or will reduce to cover only meritorious work. This is true even though you may have received a certificate of commitment which would permit you to do more work. However, different considerations may apply in the case of serious criminal charges. In these cases you should request clarification from the Commission in writing.

Advising the Commission of change of address

Your client must tell us of any change of address. If we cannot contact your client, we may stop aid.

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Acceptance of your advice

It is a condition of continuing aid that your client accepts your reasonable advice, even where the advice is unfavourable. This includes such advice as

  • that a particular proposal of settlement should be made or accepted
  • that a particular application or defence lacks reasonable prospects of success
  • that a particular course of action would be futile or counterproductive
  • that material the client wishes to put before the court is irrelevant or inadmissible
  • that a result which the client seeks is unlikely to be achieved.

If your client declines to follow your advice, you should let us know, as aid will normally be terminated. Also, reassignments are not generally permitted to enable a client to shop for more favourable advice.

It is wise to make your client aware of this condition from the outset. We often receive complaints from clients who feel that they were pressured into settlement of a case, discovering only at the last moment that their legal aid would not continue if they did not follow advice. We refer to this condition in the application form and the printed conditions, but it is helpful to the client if you also reinforce this.

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Contributions

Final contributions
Statutory charges over real estate
Administration fee
Interest
Opposing parties who are joint owners
Repayment of the charge
Special arrangements for hardship
Rebate for early payment
Appeal

All successful applicants must pay a contribution to their legal aid. The minimum contribution for a grant of aid to a private practitioner is $30, but it can be much more. In cases of severe hardship, there may be grounds to reduce or waive a contribution and these should be pointed out in writing.

If you or your client consider that a contribution has been incorrectly assessed, or it is much higher than you had anticipated, your client may appeal against the assessment.

The contribution is collected by you, not by us. You do not have to do any work under the grant of aid until the contribution is paid. If the applicant says they cannot pay the contribution without undue hardship, they may ask for an extension of time, ask to pay it in instalments, or appeal. If instalments are allowed, you may commence work from the time the first instalment is paid. Where the contribution is large, you may wish to agree to accept instalments and work may in your discretion be commenced on payment of the first instalment.

If the applicant is in custody and cannot pay, they may ask that the contribution be deferred and we will consider this. However, they may be required to pay when they are released from custody. If a contribution will create serious hardship for your client, they may write to us requesting waiver and we will consider this.

If legal aid is granted but a substantial contribution is required, it may happen that the work done to complete the case comes to less than the assessed contribution.

In that case

  • no further instalments of contribution are payable, and
  • any overpayment of contribution is refundable.

Where legal aid is refused because we consider that the applicant can afford to pay a substantial part of their legal fees, they will receive a letter specifying the amount we consider they can pay. There is no grant of aid at that time and the applicant must pay for legal representation privately. However, if their case continues to the point where that amount of money has been spent, they may reapply for aid at that time, supplying proof of what they have paid. It is helpful if the lawyer also gives details of the state of the case and the merits of proceeding. We will assess this next application for aid and determine whether the applicant is then eligible for aid.

Your client should re-apply for aid immediately the assessed contribution has been spent, otherwise they may pay for work which could have been covered by legal aid.

Final contributions

This means the amount of money to be repaid to the Commission

  • where the aided person recovers any money from the legally aided case, or
  • where their means improve by way of a lump sum from some other source (including any legal proceedings, whether legally aided or not)

such that they are no longer eligible for aid, and we consider that they can afford to repay costs already met on their behalf by the Commission.

Full repayment of all costs incurred by the Commission is required, less any contributions already paid.

This means that if the aided person receives or stands to receive any funds from the case, or if their means change, the Commission must be notified immediately. We will then calculate any repayment due. Please retain any funds received into your trust account pending advice from the Commission as to this repayment.

If dissatisfied with the assessed repayment, an aided person may appeal and put forward any special circumstances or hardship for Commissioners' consideration. However, recovery is normally required notwithstanding that they

  • have chosen to spend the money on other things
  • have been disappointed with the amount recovered, or
  • will be left with little or nothing after repayment.

Statutory charges over real estate

Section 18A of the Legal Services Commission 1977 authorises the Commission to take a statutory charge over any real estate in which your client or their financially associated person has any interest, in order to secure full repayment of the grant of aid in due course.

The charge will not arise if the cost of the case is less than the statutory charge threshold set by the Commission from time to time. At present this threshold is $2,200.

Where an extension of aid is sought which would take commitment over $2,200, and your client or financially associated person has an interest in real estate, your extension request must be accompanied by a signed consent to the charge. If there is a co-owner or if the real estate belongs to the financially associated person, they should also sign a consent before aid will be granted. However, in some cases, aid may be granted even where this other person's consent is not given. Please copy and use the Consent to Statutory Charge Form for this purpose.

Administration fee

There is an administration fee of $300 with the charge. It covers the Commission's costs of preparing and registering the charge documents, eventual removal of the charge, and all administrative work and expenses in the meantime.

Interest

Interest has not been charged on statutory charges since 1 July 1996.

Opposing parties who are joint owners

In the case of joint owners who are opponents in litigation, a charge will be taken over the aided person's interest only and will not affect the interest of the other person. If the joint property is sold, the charge(s) will be paid out of the aided person's share.

Note that if Family Court orders for property settlement specify that one party does not have a claim to real estate in the property settlement, our charge may still require repayment.

Repayment of the charge

We are content for the charge to remain over the title indefinitely, until the property is re-financed, further mortgaged, transferred, sold or until the owner dies. On the happening of the first of these events, we will be repaid. No repayments are required in the meantime, other than in exceptional circumstances, although if the owner or aided person wishes to repay at any time they may do so. They can choose to pay in a lump sum or instalments of at least $20 each.

Special arrangements for hardship

Occasionally, there may be reasons why payment on the happening of one of these events (eg re-finance, further mortgage, transfer, sale of the property) would create hardship to your client. In that case, if it is possible to protect the Commission's interests in some other way, such as by means of an equivalent security over another property, we may agree to do so. You or your client should write to the statutory charges officer about the situation. This is in our discretion, and our normal practice is to require full repayment at this time.

Rebate for early repayment

Early repayment of monies secured by a charge taken for aid granted after 1 October 1998 will attract a rebate on the amount secured. This is an incentive to your client to repay early, so that we can re-use the money to grant more aid.

The rebates are

  • $150 where repayment is within 2 years of the date the charge was taken, or
  • $100 where repayment is between 2 and 4 years of the date the charge was taken.

Appeal

Your client has a right to appeal against decisions about the statutory charge, as other decisions.

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Payment to the Commission of costs recovered in litigation

If your client receives a sum of money from the aided litigation, or other litigation associated with it (such as a property settlement in a residence case), whether by way of damages, compensation, property settlement, costs or otherwise, legal aid must be paid back. This is true, even if it means that your client will get no benefit from the money.

However, you are only required to pay the Commission the costs we have authorised to be paid. If a greater sum is received by way of a costs order, you may retain the balance, subject to your client's instructions.

Of course, ordinarily we will not fund cases where a lump sum or an award of costs can be anticipated, as we regard such cases as self-funding.

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