Types of grants of aid

1. Types of grants

1.1 - What is a standard grant of legal aid?

A standard grant of legal aid made to a legal aid applicant is either:

  • a continuous grant, or
  • a staged model grant.

Prior to a grant of legal aid being made, a legal aid applicant must satisfy the Legal Aid NSW eligibility tests which include:

  • whether legal aid is available for their type of matter;
  • Means Test;
  • and if relevant, the Merit Test.

1.2 - Continuous grants of aid

A continuous grant of aid is when a legal aid applicant receives a grant of legal aid for either:

  • a family law matter, or
  • a criminal law matter, or
  • a civil law matter.

1.3 - Staged-model grant

Legal Aid NSW may grant legal aid as a staged-model grant. This is a grant of legal aid for a particular stage of a matter. The staged model:

  • takes into account the merit of a matter at the end of each stage before moving to the next stage, and
  • enables the legal practitioner to complete work only in the stage that Legal Aid NSW has authorised, and
  • provides for  predetermined fees paid to the private legal practitioner for each stage.

Although the legal aid applicant is required to apply at each stage of the grant, the grant is ongoing and will continue to the conclusion of the proceedings unless terminated by Legal Aid NSW at an earlier stage.

2. Lump sum grants

2.1 - What is a lump sum grant of legal aid?

A lump sum grant is when Legal Aid NSW decides under section 30(2) and (4) of the Legal Aid Commission Act 1979 (NSW) (the Act), to provide legal aid in the form of a grant of money for a specified purpose or purposes.

2.2 - When is a lump sum grant of aid authorised?

Lump sum grants are usually authorised where it is considered by Legal Aid NSW that in the circumstances it is appropriate that a legal aid applicant be granted limited assistance. This may happen for example to cover legal costs or disbursements in a civil law public interest matter.

2.3 - Certain conditions that may not apply to lump sum grants

Under s30(2) and (4) of the Act if Legal Aid NSW makes a lump sum grant of aid, it can exercise discretion in deciding whether the following sections of the Act apply to the lump grant:

  • the mandatory notification requirements which are set out in ss34(6)-(8) of the Act,
  • s41 of the Act which prohibits a private legal practitioners from charging a legally assisted person any additional fees and costs, and
  • s47 of the Act which limits liability for costs ordered against a legally assisted person.

The policy of Legal Aid NSW is that generally these sections of the Act will not apply to the lump sum grant.

If any of these sections are excluded in the lump sum grant, it must be specified in the grant letter.

2.4 - Lump sum grants for public interest and test case matters

If an applicant receives a lump sum grant for a public interest environment matter, a public interest matter or test case, Legal Aid NSW policy is that the section 47 indemnity will apply unless exceptional circumstances exist.

2.5 - What costs are paid?

Legal Aid NSW will pay disbursements and fees at the relevant Legal Aid NSW Fee Scale until the sum of money granted is reached.

2.6 - What happens if the client recovers money?

If the legally assisted person recovers money then s46 of the Act applies to the lump sum grant but the Legal Aid Fund accrual is not recouped.

See Contributions policy.

2.7 - Lump sum grants authorised by the Legal Aid Review Panel

If the Legal Aid Review Panel determines to authorise a lump sum grant under section 30(2) and (4) of the Act, then ss34(6)-(8), 41 and 47 of the Act will not to apply to the grant, unless the Panel determines otherwise.

If any of the sections are excluded in the lump sum grant of aid, it must be specified in the grant letter.

3. Emergency grants of legal aid

3.1 - What is an emergency grant of aid?

An emergency grant of aid is a grant of aid made before Legal Aid NSW has all the material it needs to make a determination under s34 of the Act, and must be:

  • for an urgent matter, and
  • limited to cover the urgent matter.

Legal Aid NSW may approve an emergency grant by telephone before the legally assisted person has completed a Legal Aid NSW application for legal aid.

Legal Aid NSW officers authorised under the Delegation Instrument can determine an application for an emergency grant of aid.

The grant normally dates from the initial request for aid. Legal aid cannot be dated earlier than the original request for aid.

See Types of grants of aid guideline 1 for information about the process for approving emergency grants of aid.

3.2 - Examples of urgent matters

Situations in which Legal Aid NSW may approve an emergency grant include:

  • ex parte applications,
  • when the time for taking proceedings is due to expire. In these circumstances the emergency grant will be limited to filing the statement of claim or the originating summons, or
  • when the time for lodging an appeal is due to expire. In these circumstances the emergency grant will be limited to preparing and filing the appeal.

3.3 - Conditions attached to emergency grants

The following conditions apply to all emergency grants of aid:

  • Legal Aid NSW must receive a completed legal aid application within 14 days of the date of the grant letter.

Further grant of aid for same proceedings

Where Legal Aid NSW is satisfied that the facts in the legal aid application are not substantially the same as those disclosed by the legally assisted person's legal practitioner in the request for the emergency grant, the legal aid applicant may not receive a further grant of aid for the proceedings.

3.4 - Emergency grants not generally available in cases of delay

Legal Aid NSW will not approve an emergency grant if there is a delay due to:

  • an applicant instructing their solicitor, or
  • a private solicitor in applying for legal aid

unless there are exceptional circumstances.

Example of exceptional circumstances

Legal Aid NSW may be satisfied that there are exceptional circumstances if an applicant has an acute medical condition that leads to a delay in instructing a legal practitioner.

3.5 - If emergency grant is refused but aid is granted later

The grant of legal aid dates from the initial telephone request, if

  • the emergency grant is initially refused but legal aid is later granted, and
  • the legal aid application is received within 28 days of the telephone request.

Note: The date of a grant of legal aid is very important as it can have implications for the legal aid applicant and other parties to the proceedings. For example it may affect the extent of the indemnity under s47 of the Act.

4. Retrospective grant of legal aid

4.1 - What is a retrospective grant of legal aid

Legal Aid NSW does not have the power to authorise a retrospective grant of legal aid.

An application for a retrospective grant of legal aid is defined as one which is received by Legal Aid NSW:

  • after the proceedings are concluded, or
  • after legal services have been provided by a private legal practitioner and legal aid is then requested for those services.

Legal aid applications received following oral or informal requests for emergency grants of legal aid are not regarded as requests for a retrospective grant.

4.2 - Grants of legal aid date from initial contact

Generally legal aid grants, including those authorised by a Legal Aid Review Panel date from the initial request for legal aid which is either:

  • the date of the request for an emergency grant of legal aid, or
  • the date of the receipt of the legal aid application.

4.3 - Exceptions to the policy that aid dates from initial contact

There are three exceptions to the policy that a grant of legal aid dates from the initial request for legal aid:

  • a Legal Aid Review Panel nominates another date as the date of the grant of legal aid,
  • there are exceptional circumstances as to why legal aid should not date from the date of the initial request, including
    • Where there would be problems in enforcing s41 of the Act, or
    • Where the application of the cost indemnity provisions in s47 of the Act would cause hardship to another party to the proceedings if legal aid was granted from the date of the initial request.
  • in matters under the Motor Accident Act 1988 (NSW), grants of aid for instituting court proceedings are to date from:
    • the date of receipt of the application, or
    • the date of receipt by Legal Aid NSW of notification of the applicant's entitlement to commence proceedings under s52(2) of the Motor Accidents Act 1988 (NSW);

    whichever date occurs later.

5. Duty service grants

5.1 - Family law duty

Legal aid is available for family law duty matters, including children's matters and care proceedings.

5.2 - Criminal law duty

Legal aid is available for criminal law duty matters in the Local Court.

5.3 - Civil law duty scheme

Legal aid is available for criminal law duty matters in the Local Court.

Guidelines

Types of grants of aid guidelines

This page contains the guidelines to the Types of Grants of Aid policy, including guidelines for emergency grants of aid.