Financial sustainability – changes to eligibility guidelines 2013

Introduction

Victoria Legal Aid is introducing changes to eligibility guidelines to ensure its services remain financially sustainable in the face of record demand for legal help from the community.

The current economic climate as well as federal and state government commitments to making the community safer, including to eliminating family violence and to improving child protection mean that more people need legal help than ever before.

In the face of this record demand and without an increase in government funding and very little indexation of funding for population growth and inflation, the VLA Board has had to make thoughtful decisions about who is prioritised for legal assistance. We must manage public funds responsibly.

The new guidelines mean stricter eligibility criteria for some services and changes in the way other services are delivered to clients.

In making the changes, VLA has continued to prioritise services for the most vulnerable clients and areas where we can make the biggest impact. Changes have also been made to ensure services are provided in the most effective, economic and efficient manner, such as providing representation through our existing high-quality duty lawyer service rather than via individual grants of assistance.

The changes affect family, civil and criminal law services and will be implemented throughout 2013. The first changes come into effect on 7 January.

VLA will keep private practitioners, community legal centres and our other partners in the justice sector well informed as the changes are implemented.

Note – This factsheet provides basic information only. Practitioners should refer to the VLA Handbook for lawyers at for the relevant guidelines, which will be published on the date the changes come into effect.

Overview of eligibility guideline changes to come into effect 7 January 2013

Family Law

Parenting disputes
  • Funding of parents in family law matters that do not resolve through mandatory family dispute resolution will be limited to trial preparation. To ensure that one parent is not unfairly disadvantaged if the other is able to self-fund a private lawyer or secure one pro bono, we will continue to fund representation for the otherwise unrepresented parent as long as they are otherwise eligible to receive legal aid.

We are simply not funded to meet the growing demand in the family law courts and our priority must be to fund children where the court has identified that this is important. We accept that in some cases there may be good reasons why a family law matter did not resolve through dispute resolution and we will still fund eligible parents to prepare for trial, which is a crucial step in ensuring that all vital matters are identified before going into court and can often result in resolution of matters before a final court hearing.

We will continue to provide legal advice and information to parties on how to conduct themselves in court.

Child protection
  • The age at which children will generally be considered mature enough to give direct instructions to lawyers in child protection matters will be increased from seven to 10 years.

The change is in line with the report of the Protecting Victoria’s Vulnerable Children Inquiry (Cummins Inquiry), which considered that the age of seven was too low a threshold as one of the guiding factors in assessing a child’s capacity to instruct a lawyer and recommended that 10 years and older be set as a more appropriate threshold.

  • Funding in child protection matters will only be provided to children and people defined as parents in the Children, Youth and Families Act 2005. Extended family and other third parties will not be funded except where the Court forms the view that the party’s participation in the proceedings with legal representation is critical to the Court’s ability to make a decision that is in the child’s best interests, VLA is satisfied that the circumstances of the case are exceptional, and the party meets the other eligibility criteria for a grant of legal assistance.

Funding for services in child protection has not kept pace with demand and we have to prioritise who receives funding – our priority must be to assist parents and children. A greater number of parties involved in proceedings means cases take longer to resolve.

Criminal Law

Indictable (serious) crime
  • Instructing fees for indictable crime trials will be capped at two half-days for qualified solicitors only. Limited exceptions will be made.

We are prioritising resources to pre-trial preparation and early resolution in appropriate cases. When a case reaches trial stage, well-prepared counsel rather than solicitors have the greatest impact on outcome. Exceptions will be made in limited circumstances to enable vulnerable clients to adequately participate in trials.

Appeals
  • Appeals in the Victorian Court of Appeal and the High Court of Australia that do not have a reasonable prospect of resulting in a lesser total effective sentence or non-parole period will not be funded.

We are prioritising conviction and sentence appeals that would have a bearing on the overall period of imprisonment the client would be liable to serve.

The change will bring the appeals guideline into line with recent amendments to the Criminal Procedure Act 2009, which enable the Court of Appeal to refuse leave to appeal where the appeal would have no impact on the total effective sentence. Appeals from the Magistrates’ Court to the County Court are not affected.

Civil Law

Infringements
  • The threshold at which VLA may make a grant of legal assistance to assist a person with unpaid infringements will be increased to ‘infringements exceeding $5000’ (from $1000).

The $1000 threshold has not been raised since the guideline was first created in 2005 – the real value of that amount and its conversion into equivalent penalty units has dropped and the infringements system has expanded.

VLA will continue to provide assistance to vulnerable clients in the infringements system – some will receive grants of legal assistance and some will receive support via VLA’s duty lawyer service.

VLA will continue to work for reform of the infringements system to ensure that vulnerable people are protected from harsh and inappropriate penalties.

Overview of changes to come into effect during 2013 – dates to be confirmed

Family Law

Family law funding
  • Clients who are found to have contravened court orders in the Federal Magistrates Court, the Family Court and/or the Magistrates’ Court without reasonable excuse will not be eligible for funding or will have their funding removed, as relevant.

The new eligibility guideline will ensure that finite funds are directed to people who are compliant with court orders and those who are particularly vulnerable.

We will continue to provide legal advice and information to parties on how to conduct themselves in court.

Parenting disputes
  • Tighter eligibility guidelines for disputes dealt with at our Roundtable Dispute Management service. The details of these changes will be finalised in early 2013.
  • Stricter guidelines for non-priority clients accessing family law parenting dispute duty lawyer services. The details of these changes will be finalised in early 2013.
Independent Children’s Lawyers
  • Independent Children’s Lawyers will appear personally for children in final hearings at the Family Court and in the Federal Magistrates Court, changing from the current practice of instructing barristers in these cases, and grants of aid will become conditional on Independent Children’s Lawyers agreeing to act as solicitor advocates.

Independent Children’s Lawyers, with their specialist expertise, are in the best position to ensure that the child’s best interests are advanced in final hearings.

Child protection
  • Funding for Interim Accommodation Order contested hearings will be restricted to questions of placement, except in cases where the child is younger than two years of age. The details of these changes will be finalised in early 2013.
  • Parents seeking primary care of children and whose cases have merit will continue to be eligible for a grant of legal aid. Parents seeking only access or particular conditions in orders will not be funded. The details of these changes will be finalised in early 2013.
Family violence
  • Stricter guidelines for respondents accessing family violence duty lawyer services. Beyond the first court date, clients who would not be eligible for a grant of legal assistance will receive other forms of help and referral but will not be represented in court.
    Applicants for Family Violence Intervention Orders will continue to be priority clients and will continue to be represented by duty lawyers on subsequent return dates.

Large increases in personal safety and family violence intervention order matters have led to demand beyond our resources, which means we have to prioritise clients who need assistance the most.

Under the new guidelines, more people will get to see a duty lawyer at least once, because lawyers’ time will not be taken up by non-priority clients after their first return date.

Personal safety intervention orders
  • People seeking or responding to applications for Personal Safety Intervention Orders will only receive representation in court by a duty lawyer or under a grant of legal assistance if they are children referred by the Children’s Court, people genuinely at risk of homelessness or applicants in matters involving “obsessed stranger stalking”.
    Those clients who do not need intensive support will be provided with other forms of help and referral, allowing them to effectively resolve their matter with limited assistance.

Large increases in personal safety and family violence intervention order matters have led to demand beyond our resources, which means we have to prioritise clients who need assistance the most.

Criminal Law

Summary (less serious) crime
  • In adult summary crime matters, only those facing actual imprisonment will be eligible for a grant of legal assistance.
    Duty lawyers will continue to provide high quality advice and representation to people charged with less serious criminal offences, who are not eligible for a grant of legal assistance.

The new guideline means finite resources are targeted at an appropriate level, while ensuring people facing significant consequences continue to be represented in court.

Youth crime
  • Only those facing serious matters in youth crime where a supervisory or detention order is likely, and first-time offenders who have a prospect of being diverted away from the criminal justice system, will receive a grant of legal assistance.
    Those who do not receive grants of aid will continue to be represented by staff lawyers. If there is a legal conflict, which means VLA’s staff lawyers cannot represent the child, a grant of assistance for a private practitioner or other forms of legal help will be provided.

The change means finite resources are targeted at an appropriate level to the most vulnerable children, while ensuring all children continue to be represented in court.

Most criminal charges against youth that result in a Good Behaviour Bond or lower are matters that can be handled to a high standard by a duty lawyer without need for a grant of legal assistance. More complex matters in this bracket will also be dealt with by VLA’s staff practice.

Victoria Legal Aid internal and operational changes

VLA has already made cuts to capital and operating expenditure and will reduce staff by four per cent this financial year.

There will be further savings made internally by consolidating office spaces, investing in cost effective technology solutions and further cuts in corporate spending.

Specific changes include:

  • Make ATLAS+ (our online system for practitioners to lodge and track legal aid applications, extensions and invoices) compulsory for all s29A panel practitioners by the end of February 2013 and for all other s30 panel members by the end of March 2013.
  • Introduce centralised digital dictation in the Melbourne office this financial year to improve work practices ahead of a state wide rollout.
  • Scale back the Trial Counsel Development Program (TCDP) including extending the time that the Program takes to complete and redefining the criteria for completion.
    The TCDP is a long term investment in the quality of counsel appearing for legally aided clients in trials. As well as improving outcomes for clients, the program contributes to more efficient and effective criminal trials. Slowing the completion of the program for each cohort will have limited impact on the overall goals while allowing costs to be significantly reduced.
  • Cease prison visiting services during the first half of 2013, replacing them with a dedicated legal help telephone service, except for cases that are being heard.

Community Legal Centres

  • As community legal centres (CLCs) are also experiencing increased demand for services without a corresponding increase in funding, overall funding to CLCs will not be reduced as part of the current changes. However, VLA in consultation with the CLC sector will work to increasingly direct CLC funding to locations and legal problem types of greatest need that take account of other service availability.

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