Policy Bulletin 2024/1: At Special Disadvantage Test

Background

The At Special Disadvantage Test applies in Local Court criminal matters under the exceptional circumstances test. Where an applicant is determined to be at special disadvantage, legal aid may be granted in Local Court criminal matters even where there is no possibility of a term of imprisonment being imposed.

The At Special Disadvantage Test also applies in Apprehended Violence Order matters. Where an applicant is determined to be at special disadvantage, legal aid may be granted to a defendant in Apprehended Domestic Violence Order and Apprehended Personal Violence Order matters.

The At Special Disadvantage Test has not been updated since the early 1980s and the language used to describe disability is dated. To this end the CEO has approved modernising the language of the Test to reflect the current language around disability.

Proposal

The revised At Special Disadvantage test is:

An applicant for aid is at special disadvantage if they are:

• a child or acting on behalf of a child, or
• a person who has substantial difficulty in dealing with the legal system by reason of a substantial:
  • mental health impairment
  • cognitive impairment, or
  • physical disability.

The proposed terms ‘mental health impairment’ and ‘cognitive impairment’ mirror phrases in the Mental Health and Cognitive Impairment Forensic Provisions Act 2020 (NSW). The terms are also used in the Final Report of the Royal Commission into Violence, Abuse, Neglect and Exploitation of People with Disability including, relevantly, Volume 8 Criminal justice and people with disability.

Start date

The changes apply to applications determine on and after 15 January 2024.

Further information

Contact the Client Eligibility Unit via email: T-CEU@legalaid.nsw.gov.au.