A grant of legal aid means that Legal Services will provide or pay a solicitor to represent a person. The legal casework handled by Legal Services falls into three broad categories: criminal, family and civil. Legal aid is only granted where a person cannot afford to pay privately for legal representation, where no other source of assistance is available, and where the case is of a type that Legal Services considers appropriate for the expenditure of limited legal aid funding.
People may ask for a particular solicitor, whether a private practitioner or an in-house Legal Services lawyer, and such requests are granted where possible. If a person has no particular solicitor in mind, Legal Services will arrange representation in-house or from the private legal profession. Legal Services has the largest specialist criminal defence practice, including Senior Counsel, meaning that the in-house practice can provide effective representation at every level of a criminal matter.
Recipients of legal aid are required to make a contribution towards their legal costs, with the amount of the contribution dependant upon how much they can reasonably afford to pay. The minimum contribution for a grant of aid is $70 for family law matters and $50 for all other matters. It can be more than this, depending on their personal financial situation.
If an applicant for legal aid or any financially associated person (such as someone from whom they regularly receive financial support, to whom they usually provide financial support, or who could reasonably be expected to financially assist them in obtaining legal services) owns real estate, and their legal costs exceed $2,350, Legal Services will impose a statutory charge over the property to secure repayment of those costs.
The charge applies to any real estate in which either person has an interest. It does not matter whether the real estate is fully paid off or whether there is still a mortgage. The charge makes sure that the person ultimately repays the cost or value of the grant of legal aid. For the costs associated with the charge, there is an additional administration fee of $300. Legal Services does not require the person to pay off any amount of the charge until the property is transferred to another owner, or the property is refinanced, or the person dies. Legal Services will not normally force the sale of the property, except in very rare cases. It is possible for legal aid recipients to repay the charge early, and receive a small rebate.
Legal Services publishes a fact sheet for people who want to know more about statutory charges. Copies are available in the duty solicitor or regional offices as well as through the website, see Statutory Charge Factsheet.
Applications for legal aid are to be submitted using the Online Legal Services (OLS) Portal. To use the OLS Portal, applicants will be required to register as a user and create an account.
For those unable to use the OLS Portal, hard copy legal aid application forms are available from all Legal Services offices, community legal centres, most law firms and the courts. The form can also be downloaded from the website [see Applying for Legal Aid]. Applications for legal aid can be made directly to Legal Services, or, if a person wishes to be represented by a particular private solicitor, through that solicitor’s office. People applying for legal aid may require assistance to complete an application form, for example, from a duty solicitor, a Legal Services adviser or reception staff, the private solicitor they have consulted, or a community worker. People in prison often need special help.
Before Legal Services will accept a legal aid application, it must be fully completed and include the necessary documents establishing proof of means, as well as copies of any relevant court documents.
The documentation required to be included with the legal aid application form include:
Once accepted, the application for legal aid can only be processed if all other relevant supporting documents are supplied, such as (in criminal matters) a copy of the summons. If the documentation is not supplied, Legal Services will write to an applicant requesting this material before deciding whether aid can be granted. Relevant court documents include copies of any court orders, proceedings, summons, information, bail agreements and so forth which are related to current court proceedings.
The actual cover of the legal aid application form should not be sent in to Legal Services. The applicant should keep this because it explains the main conditions of legal aid.
| ATTACH A COPY OF THE PINK DUTY SOLICITOR FORM |
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| When submitting a legal aid application to Legal Services for a person the duty solicitor has seen, the duty solicitor should make sure that they attach to it a copy of the pink duty solicitor form. This supplies important extra information about the applicant’s matter and circumstances, and may help with the application. |
The fact that people are in prison does not affect their obligation to supply the same material as all other applicants for legal aid, but does often affect their ability to obtain and supply supporting documentation. When helping people in custody or in prison to complete their legal aid applications, the duty solicitor should enquire about, and note in the application form, the following details as a minimum:
This information is important because the period covered by the grant of legal aid may continue beyond the time spent in custody or prison. While the prisoner’s income may cease during incarceration, that of any financially associated person is unlikely to change greatly, and the prisoner’s assets remain the same. Bail applications are often successful and the applicant can then return to their usual life. People who are in prison may still need to pay the initial contribution, before work on their case can proceed and the contribution can only be assessed if all relevant financial information is provided.
| ARRANGEMENTS FOR SUPPORTING DOCUMENTATION |
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| After helping a person in custody or prison complete an application for legal aid, the duty solicitor should encourage them to arrange for someone else to promptly post or deliver their proof of means and supporting documents to Legal Services, as the application may not be accepted or processed without them.
If the duty solicitor is lodging an application for a person in custody or prison who cannot supply supporting documents with it, they should mark on the form “applicant in custody, supporting documents to follow” and should also remember to attach a copy of the pink duty solicitor form. |
It is important to apply for legal aid as soon as possible, because legal aid pays legal fees only after the date that legal aid is granted. The earliest date from which this can occur, once legal aid is approved, is the date on which Legal Services has received the application for legal aid. Legal Services will not pay for any legal work done before legal aid is approved.
If a person's application is approved, they will receive a letter of confirmation, usually within 14 days, but urgent applications may be processed more quickly. If the person is due to appear in court before their application can be processed, they can advise the court they have applied for legal aid and ask the court for an adjournment or remand to a later date. They may be required to show the court a receipt from Legal Services indicating that an application has been lodged.
The conditions of legal aid are set out in the cover to the application form. In summary, people on grants of legal aid must:
In many cases an applicant must also sign a consent to a statutory charge being taken over any real estate (these applicants should be given the Statutory Charge Factsheet). If the property belongs to a financially associated person, that person must also sign a consent form before work can begin on the case.
All legal aid applications are strictly confidential. Legal Services will not reveal information about who has received or applied for legal aid. If someone believes that a person who is receiving legal aid is not eligible, or is no longer eligible, they may complain to the Client Relations Coordinator (telephone 8111 5555 or email clientrelations@lsc.sa.gov.au). The Client Relations Coordinator will investigate the complaint without disclosing whether the person complained about has applied for legal aid or any details of their case. Legal Services does not disclose to complainants or anyone else the outcome of enquiries that have been made at their behest.
Legal aid does not cover “court costs” or any fines imposed. The client is legally responsible to pay these amounts. Legal Services cannot pay these costs because it is not authorised to do so under the Legal Services Commission Act 1977 (SA).
Legal Services has four criteria for granting legal aid, each of which must be satisfied: means, merit, guidelines and forum. Each application is assessed for these criteria by the Grants Section.
The means test determines the amount of contribution a person with a given income and assets can afford to make towards necessary legal services. The income and assets of any financially associated person are treated as if they were the income and assets of the applicant unless they are in legal conflict. A financially associated person is any person or corporation or group from whom the applicant usually receives financial support, or to whom the applicant usually provides financial support, or who/which could reasonably be expected to financially assist the applicant in obtaining legal services. An applicant whose disposable income is less than the poverty line is normally assessed at the minimum contribution level, unless there are substantial assets.
| DO NOT GIVE ADVICE ABOUT MEANS |
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| A duty solicitor cannot give advice about whether a person will qualify for legal aid on means. Each application has unique characteristics and is assessed individually. |
Legal Services must be satisfied that it would be appropriate to expend public legal aid funds on the matter, and that a reasonable self-funding person would incur the costs that are being sought to be paid with public money. Where the matter has no reasonable prospects of success, legal aid is refused. In serious criminal matters, the existence of a reasonably arguable defence may suffice. The aim is to put applicants into an equal but not better position than private individuals who, of course, risk their own funds.
Guidelines that are set by Legal Services and, since July 1998, the Commonwealth Government (with respect to matters arising under Commonwealth law), limit the kinds of cases to which the limited funds available for legal aid will be applied.
The guidelines include as eligible only those cases where a person’s liberty is at stake or where the safety of a child is at risk; and preclude applications where some other avenue of help is available, where the person can afford their own representation, or where the cost of legal aid outweighs the benefit of the case. For example, legal aid is not granted for commercial or business matters, and is rarely granted in civil matters.
| KNOW THE GUIDELINES |
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| A duty solicitor will need to understand the guidelines when it comes to legal aid funding. More information is available through the website [see Eligibility for legal aid]. |
Legal Services will only grant aid for cases to be heard in South Australia.
If a case is to be heard elsewhere, or is likely to be heard elsewhere (for example because previous proceedings were heard elsewhere or because children the subject of the family law dispute live elsewhere), the application should be made to the legal aid body in that State or Territory.
Once aid is granted, the grant remains the responsibility of Legal Services unless the hearing of the proceedings moves and the aided person leaves or has never resided in South Australia. In that case, the applicant must reapply to the legal aid body in the new State or Territory. Qualification for aid in one jurisdiction does not necessarily result in qualification in another.
If a matter is funded in one State or Territory, and then in another, the second funding body will collect and pass on any money due to the first funding body at the end of the grant.
A wide range of criminal legal aid work can be undertaken, from minor offences where there is a real risk of imprisonment, to serious offences such as arson and murder. However, due to funding restrictions, legal aid is not usually available for:
Guidelines can be waived in cases involving special or exceptional circumstances such as hardship (financial or otherwise) likely to be caused to an applicant if legal assistance is not provided; or emergency situations where the liberty, livelihood, possessions or physical and mental wellbeing of the applicant and any dependants are threatened.
If legal aid is refused, an applicant will be told why in a letter. Where legal aid has been refused, or granted subject to conditions with which an applicant does not agree, there is a right of appeal. There is no particular form for an appeal but it must be made in writing within fourteen days of notification of the decision. The appeal results in a reconsideration by the assigning officer, and if the original decision is affirmed, it is referred to an Appeals Panel which sits fortnightly.
| ASSISTANCE TO APPEAL WHEN LEGAL AID IS REFUSED |
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| If someone tells the duty solicitor that they have been refused legal aid, the duty solicitor should ask to see the letter. If the person does not have a letter, it is worth checking whether they have filled in a legal aid application form or have only visited an office for advice (and assumed this constituted an application for legal aid). The duty solicitor can help people with their appeal letter, or refer them for a free appointment with an adviser at their nearest Commission office, or with the Commission’s Client Relations Officer. |
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Legal Services acknowledges Aboriginal people as the Traditional Owners and ongoing occupants of the lands and waters in South Australia and we respect their spiritual, cultural and heritage beliefs. We recognise their continuing connection to land, water and community and pay our deep respect to Elders past and present.
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