Legal Aid Review Panel appeal policies

1. Appealing a decision made by Legal Aid NSW

Under s 56 of the Legal Aid Commission Act 1979 (NSW) (the Act), an applicant may appeal to the Legal Aid Review Panel against a decision to refuse legal aid, to terminate legal aid, or against a condition of a grant of aid. 

1.1 Internal review

Where an applicant or legally aided person appeals a decision, Legal Aid NSW will review the original decision. This is the internal review stage.

The officer undertaking the internal review will consider all the information provided in support of the appeal, and assess whether:

• the original decision was correct or incorrect, and
• whether any extra information or material provided by the person changes the original decision.

Where the original decision stands, the appeal will be forwarded to the Legal Aid Review Panel.

Legal Aid NSW will inform the appellant that their appeal has been forwarded to Legal Aid Review Panel.

1.2 Redetermination

Under s 34(1) of the Act, Legal Aid NSW may at any time redetermine an application for legal aid that has been refused or terminated.

A decision the subject of an appeal will be redetermined:

• to grant aid
• change a condition of a grant of aid, or
• to reinstate a terminated grant of aid

where, on reassessment of the application and any additional material provided in support of the appeal, it is determined the appellant is eligible for legal aid, or it is appropriate to change a condition of the grant.

Where a redetermination of the original decision is made, Legal Aid NSW will inform the appellant in writing within fourteen (14) days that legal aid has been granted, a condition changed, or the grant reinstated.

1.3 What happens if the grounds of refusal changes?

Where, on internal review, Legal Aid NSW redetermines the application and refuses the application on different grounds, the applicant will be notified within seven (7) days, and the appeal time starts from the new decision.

1.4 When does an appeal lapse?

An appeal will lapse if Legal Aid NSW redetermines the refusal of the application or termination of the grant, and grants or reinstates legal aid.

2. Appealing to the Legal Aid Review Panel

2.1 Introduction

Legal Aid Review Panels are established under Part 3 Division 3 of the Legal Aid Commission Act 1979 (NSW) to hear and determine appeals in relation to the provision of legal aid. A Legal Aid Review Panel comprises one member. Where an appeal raises a complex question of law or policy, the Panel will comprise at least two (2) members.

Appeals are dealt with on the papers. There are no in-person hearings.

2.2 Right of appeal

Under s 56(1) of the Act a legal aid applicant or legally assisted person has a right of appeal to a Legal Aid Review Panel against certain decisions made by Legal Aid NSW.

2.3 Timeframe and form of an appeal

An appeal must be lodged:

• in the manner and form approved by Legal Aid NSW, and
• no later than twenty-one (21) days after notice of the decision appealed against is received by the appellant.

2.3.1 Approved form

An appeal must be lodged in the prescribed form [link].

2.3.2 Date the notice of decision is received

The notice of decision will be deemed to have been received by an applicant or legally aided person:

• where the notice of decision is sent via email, on the date the email was sent to the appellant or appellant’s solicitor, or
• where the notice of decision is sent by mail, seven (7) days after the date of the notice.

2.4 Decisions against which there is a right of appeal

An applicant or legally assisted person may appeal against the following decisions:

• the determination or redetermination of an application for legal aid
• a decision to vary a grant of legal aid
• a decision to decline payment of the whole or part of costs awarded against the legally assisted person.

Note: A decision to vary a grant of legal aid includes a decision to terminate the grant.

See clause 2.5 for decisions against which there is no right of appeal.

2.5 Decisions against which there is no right of appeal

2.5.1 Local Court criminal proceedings

There is no right of appeal against a decision where the application relates to proceedings in the Local Court in relation to a criminal offence (excluding EAGP matters):

• where legal aid is refused because the applicant did not satisfy the Means Test, or
• against the amount of a contribution imposed under s36 of the Act.

2.5.2 Representation

There is no right of appeal against a decision that a particular lawyer will provide legal services under a grant of legal aid.

2.5.3 Contributions to legal costs under s46 of the Act

There is no right of appeal against a decision to impose a final contribution or the amount of that contribution.

Note: There is only a right of appeal against determinations that are made under Part 3 of the Act. There is no right of appeal against other decisions made about Legal Aid NSW services, including, for example, refusal to provide an Advice, Minor Assistance, Early Resolution Assistance or Extended Legal Assistance service.

3. The appeal at the Legal Aid Review Panel stage

An appeal will be referred to the Legal Aid Review Panel. See clause 4. Role of the Legal Aid Review Panel for information on the role of the Legal Aid Review Panel and the appeal process.

3.1 Complex appeals

Where Legal Aid NSW determines an appeal is a complex appeal, it will be referred to a two-member Legal Aid Review Panel.

3.1.1 What is a complex appeal?

Legal Aid NSW may determine an appeal is complex where it raises complex or novel issues of law or policy, and/or where the consequences of a person not having a grant of legal aid could have a wider impact on the justice system.

In determining whether an appeal is complex, Legal Aid NSW may take into account:

• whether the appeal raises complex sentencing or legal issues
• whether there is a possibility of a Dietrich stay application should the original decision be upheld, or
• any other circumstance that Legal Aid NSW may consider constitutes a complex appeal.

Note: An internal Legal Aid NSW reference committee, the Complex Review Committee, will decide whether an appeal is complex. The committee will convene when an appeal is referred to the committee for consideration by a Grade VI Solicitor Grants, or a Deputy Director inhouse practice.

Where the committee decides an appeal is complex, it will be referred to a two-member Legal Aid Review Panel for determination.

3.2 What happens if the appeal is lodged out of time?

Appeals are required to be lodged within twenty-one (21) days.

3.2.1 Notice of appeal lodged out of time

If an appeal is lodged out of time, the appellant will be notified within fourteen (14) days that the appeal will not be accepted out of time and will not be referred to the Legal Aid Review Panel.

3.2.2 Can an appeal be accepted out of time

In some very limited circumstances, Legal Aid NSW may be satisfied that the appeal should be accepted out of time, where:

• the personal circumstances of the appellant may have reasonably led to the delay, or
• the appellant is in custody.

In determining whether to accept an appeal out of time, Legal Aid NSW will take into account:

• any prejudice to other parties or the court, and
•  the extent of the delay.

If an appeal is accepted out of time, the appellant will be informed in writing within fourteen (14) days that their appeal has been referred to the Legal Aid Review Panel.

Note: Legal Aid NSW can redetermine at any time an application for aid that has been refused or a termination of a grant. If an appeal is lodged out of time, Legal Aid NSW will consider any material provided in support of the appeal to assess whether the application or termination should be redetermined.

Note: only officers with a delegation can determine to approve an appeal out of time.

3.2.3 Date of the grant where an appeal is allowed

Where an appeal against the decision to refuse legal aid is allowed, the grant will date from the day the application was received, unless the appeal was lodged out of time.

Where an appeal against a decision to refuse legal aid is lodged out of time, and the appeal is allowed, Legal Aid NSW may determine that the grant of legal aid will date from the date the appeal is lodged.

3.3 Adjournment of legal proceedings

If a party to proceedings before a court or tribunal has appealed or intends to appeal to the Legal Aid Review Panel, that party, under s 57 of the Act, may apply for an adjournment of the proceedings pending the hearing of the appeal.

Under s 57 of the Act, a court or tribunal is required to adjourn the proceedings to such date and on such terms and conditions that it thinks fit, provided it is satisfied that:

• the party has appealed or intends to appeal to a Legal Aid Review Panel,
• the appeal or intention to appeal is bona fide and not frivolous or vexatious or otherwise intended to improperly hinder or improperly delay the conduct of the proceedings, and
• there are no special circumstances that prevent the court or tribunal from adjourning the proceedings.

4. Role of the Legal Aid Review Panel

When determining an appeal, a Legal Aid Review Panel:

• has the functions and discretions that the person whose determination, variation or decision is the subject of the appeal, and
• is required to apply the Legal Aid NSW Polices and Guidelines that applied to the original decision, and
• must adhere to administrative law decision making principles, and
• is required to comply with the policies and guidelines developed by Legal Aid NSW for Legal Aid Review Panel decision-making.

4.1 The Legal Aid Review Panel hearing

The Legal Aid Review Panel appeal is conducted on the papers.

Appellants and their legal representatives do not have a right to appear or make submissions directly to the Legal Aid Review Panel.

4.2 Two-member Legal Aid Review Panel

Where Legal Aid NSW decides a matter is complex, the appeal will be referred to a two-member Legal Aid Review Panel.

The two members of the Legal Aid Review Panel must record their reasons for decision, about which there should be consensus.

4.3 What happens to the appeal if the Legal Aid Review Panel cannot come to consensus on a complex appeal

Where a two-member Legal Aid Review Panel cannot come to consensus on a complex appeal, Legal Aid NSW will refer the complex appeal to a different two-member Legal Aid Review Panel.

4.4 Method of allocation of work

When allocating appeals, Legal Aid NSW will ensure:

• the Legal Aid Review Panel member has the relevant expertise, and
• the Legal Aid Review Panel member does not have an obvious conflict.

Legal Aid NSW will allocate work to Legal Aid Review Panel members in accordance with guidelines that set out the rules of allocation to ensure compliance with administrative law principles.

4.5 Role of Legal Aid NSW in appeals

The Legal Aid Review Panel is an independent decision-maker. Legal Aid NSW cannot interfere with the decision of the Legal Aid Review Panel.

Legal Aid NSW will provide the Legal Aid Review Panel with access to the relevant information and material that was available to the original decision-maker, including all the material sent to Legal Aid NSW in support of the appeal.

Legal Aid NSW will be available to clarify or provide information relating to the appeal. This could include clarifying the interpretation of the eligibility policies.

4.6 Where a Legal Aid Review Panel seeks further information from Legal Aid NSW

There may be circumstances where a Legal Aid Review Panel is unable to determine an appeal because they require additional information.

In such situations, the Legal Aid Review Panel may consult with Legal Aid NSW about what is required for a determination to be made about the appeal.

This may include but is not limited to:

• further information about the appellant’s income and assets
• a merit advice where the appeal relates to a merit decision.

Where the information cannot be provided to the Legal Aid Review Panel within the time available for determining the appeal, the Legal Aid Review Panel will defer the determination.

Where the Legal Aid Review Panel decides to defer a determination pending the provision of further information, the request will be sent to the Legal Aid Review Panel Secretariat who will action the request.

Legal Aid NSW will provide the Legal Aid Review Panel with a timeframe for gathering the required further information.

The Legal Aid Review Panel determination will be deferred pending the provision of further material or evidence.

When the information is available, it will be returned to the same Legal Aid Review Panel for a determination.

Where a Legal Aid Review Panel does not have the relevant delegation

The Legal Aid Review Panel stands in the shoes of the original decision-maker, and can only make determinations that are within the delegation of the original decision-maker.

If, on review of the appeal, the Legal Aid Review Panel forms a view that the appeal ought to be allowed but the original decision-maker did not have the appropriate delegation, they can make a recommendation to Legal Aid NSW.

If the Legal Aid Review Panel has formed a view that discretion should be exercised:

• to grant legal aid where the appellant does not meet the Means Test
• to reduce the level of an initial contribution, or
• to grant aid where the appellant does not meet the Family Law Property Policy,

they can decide to defer the appeal and refer it to Legal Aid NSW with a recommendation that Legal Aid NSW exercise discretion to make the recommended decision.

Legal Aid NSW will refer the appeal to an officer with the appropriate delegation. This officer will decide whether to adopt the recommendation.

Where the officer with the relevant delegation redetermines the application and grants legal aid, the appellant will be informed within seven (7) days of that decision.

Where the officer with the relevant delegation reviews the original decision, and determines not to exercise discretion to grant aid, then the appeal must be returned to the Legal Aid Review Panel for determination of the appeal.

The Legal Aid Review Panel stands in the shoes of new delegated officer and will therefore have the delegation to exercise discretion.

Where the appeal is allowed by the Legal Aid Review Panel and legal aid granted, the appellant will be notified within seven (7) days. 

5. Determination of the Legal Aid Review Panel is final

Under s 60 of the Act, the determination of the Legal Aid Review Panel is final.

Where the Legal Aid Review Panel makes a decision to refer a matter back to Legal Aid NSW

• for further information, or
• with a recommendation that the matter be determined by an officer with the appropriate delegation,

the appeal will be stayed until the matter is returned to the Legal Aid Review Panel for determination.

If Legal Aid NSW redetermines the application and grants aid, the appeal will lapse.