Terminating grants of legal aid

Legal Aid NSW can terminate a grant of legal aid under s 38 of the Legal Aid Commission Act 1979 (NSW).

Administrative law principles of procedural fairness are followed whenever a decision is made to terminate a grant of legal aid.

1. When can legal aid be terminated?

A grant of legal aid may be terminated where Legal Aid NSW is satisfied the legally aided person:

• ceases to satisfy one or more of the eligibility tests including:
• • the means test
  • the relevant merit test
  • the relevant Legal Aid NSW policies and guidelines, or
• does not comply with one of the conditions of the grant as set out in the grant letter including:
• • payment of contribution, or
  • executing a charge, or
  • co-operating with Legal Aid NSW and/or his or her lawyer including, attending appointments, providing adequate and/or proper instructions, accepting the reasonable advice of the lawyer, or
• is violent or threatens violence against the lawyer who is representing him or her in the proceedings for which they have a grant of legal aid, or
• no longer wants the grant of aid, or
• dies or no longer has capacity.

When considering terminating legal aid, Legal Aid NSW must take into account the Termination guidelines.

Legal Aid NSW staff who are authorised under the Delegation Instrument can terminate legal aid. 

2. Before terminating legal aid

Before terminating legal aid, Legal Aid NSW must (except as noted in the guidelines) notify the legally aided person in writing of the intention to terminate. See Termination guideline 10.

3. After terminating legal aid

Once legal aid is terminated, Legal Aid NSW must comply with the statutory notification requirements set out in s 38 of the Legal Aid Commission Act. See Termination guideline 11.