What's new for legal aid lawyers

Criminal case assignment: Availability during the Christmas break

Legal Aid Services will be operational on 29, 30 and 31 December for urgent criminal applications. If you are available to take assignment during 29-31 December, please email legalaidprovider@justice.govt.nz by 30 November 2020.

This will allow us to identify any areas where provider coverage may be limited and ensure that you do not get disturbed unnecessarily during your break. 

Special duty lawyer arrangements for the holiday period

19/11/2020 - Duty lawyers who are required to be on-call over the holiday period from 25 December 2020 through to the 4 January 2021 may claim a 2-hour minimum for being on-call.

On any day from 25 December 2020 through to 4 January 2021, when a duty lawyer is rostered to be available for the duty lawyer service, he or she may claim 2 hours, or the actual hours, if that is more than 2 hours.

This does not apply where a duty lawyer is rostered on but cannot attend and finds a replacement, or attends for less than 2 hours and excuses themselves to attend a private matter. This policy is temporary and will apply only for this holiday period.

When the Aided Person in Waitangi Tribunal Proceedings Dies

19/11/2020 - In Waitangi Tribunal cases, where a grant is made to an individual for the benefit of a group of Māori, a new application for legal aid is required if the aided person dies.

The provider must notify Legal Aid Services and it is appropriate that we close the grant of aid. The grant should continue, but to do that a new application is required from another named claimant of the group.

Criminal legal aid assignments published

13/11/2020 – The Ministry of Justice has published information on criminal legal aid assignments for the period 1 July 2019 – 30 June 2020.

The assignment reports show all criminal legal aid assignments made for the period. It includes preferred, reassignments and rotational assignments. This report should not be used to compare rotational assignments between providers.

You can view the report on the page Criminal legal aid assignments - information & criminal case reports.

Where to send Civil Applications

13/11/2020 - From 1 December 2020, the Auckland Legal Aid office will be administering general Civil Legal Aid (including ACC and Employment) applications, for proceedings in the District Court in the Auckland and Northland regions. This change further aligns the geographical boundaries and work distribution we already have in the Criminal and Family jurisdiction.

This means that from 1 December, all new Legal Aid applications and all correspondence on existing files, where the applicant is based in the Auckland or Northland region, should be sent to AKLCivillegalaid@justice.govt.nz or by post to BX10660 North Shore City.

This change does not affect Historic Abuse or Waitangi applications/files, and these will still be managed in Wellington.

This change does not affect Refugee and Immigration applications/files, and these will still be managed in Auckland.

Paternity cases

22/10/2020 - Legal aid may be approved for paternity proceedings where there is a paternity dispute and proceedings are contemplated. Most commonly there will be an application by the mother of the child for legal aid to apply for a paternity order.  Legal aid can be granted for fathers who seek a paternity order or for either parent who seeks a non-paternity declaration. Respondents in paternity proceedings, be they the mother or a father/putative father, may also apply for legal aid. An application for a paternity order or a declaration under the Family Proceedings Act 1980 or Status of Children Act 1969 may be required.

The legal aid application must provide evidence of a dispute, that if not resolved, will require Court proceedings. The application must enable an assessment to be made of whether there are reasonable grounds for a party to take or defend a paternity proceeding.

Such evidence is likely to include:

  • the identity of the putative father
  • whether or not the putative father accepts he had sexual intercourse with the applicant about the time of conception
  • whether there is any corroborative evidence to establish that the putative father was in a relationship with the applicant about the time of conception
  • whether or not the putative father agrees to undergo DNA testing
  • steps the legal aid applicant has taken to contact the putative father and ask these questions
  • whether an application to the Court may be required.

Given the nature of paternity disputes not all this information may be available, however matters of this nature should be addressed.

If the applicant has reasonable grounds for taking or defending a proceeding to resolve a dispute, it must then be considered whether a grant of aid is justified under section 10(5) of the Act.

In determining whether a grant of aid is justified, the matters set out at section 10(6) must be considered: 

  • Any previous proceedings in the matter to which the application relates
  • Any personal protection issues such as (without limitation) any orders relating to family violence (as defined in section 9 of the Family Violence Act 2018), protection of personal property rights, compulsory treatment, or compulsory care
  • Whether there are any complex factual, legal, or evidential matters that require the determination of a court
  • Whether it is in the public interest that legal aid be granted.

Legal aid may be refused if a grant is not justified.

Assessing the merits of the applicant’s case need not be a time consuming or a difficult exercise. It will be assisted by an application that explains why legal aid should be granted and provides information about the dispute and any other relevant circumstances that justify a grant.

Proceedings do not have to be issued or drafted before legal aid is applied for. Proceedings may be avoided by negotiations or other steps (such as a DNA test) that obtain a legal acknowledgment of paternity. The acknowledgement may be achieved before proceedings are issued by consent to an amendment to birth registration so that the father may be added to the birth certificate, or by signing a deed of paternity.

Where Court proceedings are filed, and the Commissioner has paid the costs of the other party’s DNA tests, and the aided party is successful in the proceedings, the legal aid provider should submit an application for costs to the Court or provide an explanation to the Commissioner as to why costs were not sought.
A request to fund the other party’s share of a DNA test should only be approved where the other is unable to or refuses to pay and proceedings have been filed. If proceedings have been filed a costs order may be obtained which will facilitate recovery of those costs.

Cut-off date for invoices reminder

22/10/2020 - As we approach the end of the year, Legal Aid would like to ensure that it processes all provider invoices as seamlessly as possible. Please ensure that you submit all invoices as early as possible prior to the Christmas break to avoid disappointment.

Friday 27th November will be the cut-off date for payment of invoices prior to the holiday season. Invoices received after this date, may be processed and paid, but we will not be able to guarantee this.

Thank you for your cooperation in this matter.

Update on Legal Aid Services response to COVID-19 (8 October 2020)

9 October 2020 – Following the Prime Minister’s announcement that Auckland will be moving to Alert Level 1 effective Thursday 8 October, the whole of New Zealand has now returned to Alert Level 1. Accordingly, the updates on Legal Aid Services’ response to COVID-19 that have been published on the Ministry’s website since 12 August 2020 will no longer apply. This change is effective from close of business, Friday 9 October 2020.  

This means that unless advised otherwise, legal aid polices on travel disbursements, duty lawyer invoicing, additional fees and signing of legal aid applications for attendances after 9 October 2020 will return to business as usual.

We thank you for your assistance and cooperation during this time, in continuing to deliver our essential and priority services. 

Criminal Case Assignment Christmas and New Year availability

9 October 2020 - The end of the year is fast approaching! Most courts will be closing on 24 December (Xmas Eve) and re-open on 05 January 2021.

If you have leave planned over the festive season for a period of more than 5 working days, you need to email legalaidprovider@justice.govt.nz with the dates that you are unavailable.

This allows us to identify any areas where provider coverage may be limited and ensure that you do not get disturbed unnecessarily during your break. 

Please let us know by 31 October 2020.

0800 2 LEGAL AID Update

09 October 2020 - As you will be aware, the Legal Aid Services telephone system has been through some changes over the last few months. These systems changes went live 30 June 2020 and so far, have been successful in gathering better information on the volume, purpose and pattern of calls.

The next step for the 0800 2 LEGAL AID calls is to move them to the Registry Contact Centre (RCC). RCC are highly experienced in many facets of the Ministry and have the capacity to manage the high volume of Legal Aid calls. This system will be trialled before calls move to RCC 28 October 2020.

Thorough training and guidance material will be provided to RCC staff prior to the move of these calls. In the event that the call cannot be answered by a Registry Contact Centre staff member, a new call transfer system has been implemented to improve the accessibility to Grants Officers. Thank you for your patience while we complete these changes.

Alert Level 1 – Update on Legal Aid Services response to COVID-19

25 September 2020 – Except for the Auckland region, New Zealand has returned to Alert Level 1. Accordingly, the updates on Legal Aid Services’ response to COVID-19 that have been published on the Ministry’s website since 12 August 2020 will no longer apply for all areas except the Auckland region. This change is effective from close of business, Friday 25 September 2020.  This means that except for the Auckland Region, and unless advised otherwise, legal aid polices on travel disbursements, duty lawyer invoicing, additional fees and signing of legal aid applications for attendances after 25 September 2020 will return to business as usual.

We thank you for your assistance and cooperation during this time, in continuing to deliver our essential and priority services. 

New addition to travel exceptions list

10/09/2020 – Blenheim District Court has now been added to the travel exceptions list for Criminal matters for PAL1 and PAL2 providers from Nelson due to a shortage of available providers. This means a Nelson-based provider may be assigned a Blenheim DC PAL1 or PAL2 case and, subject to the disbursements policy, reasonable travel costs will be approved.

The list has been updated in the grants handbook.

Levin District Court re-opening from 14 September 2020

10/09/2020 – The Levin District Court will be reopening from 10am Monday 14 September 2020. The court has been closed for earthquake strengthening work since November 2019.

Unless judicially directed otherwise, from 14 September, new and existing Levin cases will be heard at the Levin District Court, corner of Stanley and Bristol Streets, Levin.

Some changes that were made to accommodate the closing of the Levin District Court will return to business as usual.

Travel disbursement
During the court closure, most Levin District Court cases were transferred to the Palmerston North District Court. Legal aid providers were able to claim travel expenses to Palmerston North District Court.
From 14 September 2020, Levin District Court cases will be heard at the Levin District Court. Providers should claim travel expenses in accordance with the Grants Handbook (link).

Legal aid applications and assignment of cases
Please continue to specify Levin District Court on relevant application forms.
Providers on the assignment lists for Levin District Court will continue to be assigned on a rotational basis, as per current practice.
Thank you for your co-operation and patience while this work was undertaken.

Invoicing for Parole Proceedings

10/09/2020 - Please mark invoices for Parole matters as ‘Final’ when claiming a ‘Completion’ fee. Alternatively, if the grant is to remain open please provide the reason for that.

Update on Legal Aid Services response to COVID-19 (28 August 2020)

28/8/2020 - Following the Prime Minister’s announcement that the Auckland Region will be moving to COVID 19 Alert Level 2 effective Monday 31 August, the following changes to Legal Aid processes will continue to be in place nationwide:

  • Legal Aid will accept any applications that haven’t been signed by your client. Please sign any forms on their behalf and state the reason for not being able to obtain the signature and note this when submitting the form.
  • Fees for additional services required because of the COVID-19 rules may be accepted; up to 2 hours at your legal aid rate can be accepted without an amendment to grant. For example, assistance in negotiating child care arrangements during heightened alert or additional communication with clients in criminal cases may both be eligible without an amendment.
  • Duty Lawyers may continue to claim a minimum of 2 hours or actual hours attended if rostered to be available. During this period, we will pay duty lawyers disbursements for printing at the standard rate of $0.10 per page.
  • Processing of invoices from providers where preparation for a hearing/trial was undertaken and the event was not able to go ahead due to the changes in COVID-19 Alert Levels will continue. These invoices can be submitted as normal and will be paid if appropriate.

Legal Aid policy for travel will revert to normal with travel expenses to court being paid from their usual place of business.

These policies will be reviewed as further announcements about the Alert Levels are made.

Ngā mihi

Brett Dooley, Legal Services Commissioner

Update on Legal Aid Services response to COVID-19 (17 August 2020)

17/8/2020 – The Auckland Region moved to Alert Level 3 at 12 noon on Wednesday 12 August 2020. In response, for those areas where Alert Level 3 applies, we are re-instating relevant Legal Aid policy and process changes, in addition to those advised 12 and 13 August.

The updates are detailed below:

Additional Fees due to COVID-19 Activities
There may be additional services required because of the COVID-19 rules. For example, in family cases we understand you may have assisted with negotiation of care arrangements. In criminal cases, adjournments may have required additional communications with your client, the court and other agencies.

Where additional services have been provided to, or on behalf of your client, because of the lockdown we will approve up to 2 hours at your legal aid rate for the case without needing an amendment to grant.

Your invoice should briefly describe the additional services and reference the COVID-19 lockdown.

Duty lawyer Payments
When a duty lawyer is rostered to be available for the duty lawyer service, he or she may claim a minimum 2 hours, or the actual hours attended, if that is more than 2 hours.

We also understand that due to some hearings taken place via AVL, duty lawyers may be required to print disclosure or opposed bail paperwork. During this period, we will pay duty lawyers disbursements for printing at the standard rate of $0.10 per page.

Note that these updates apply for the areas where Alert Level 3 applies, from 12 noon 12 August 2020 until further notice.

Ngā mihi

Brett Dooley, Legal Services Commissioner

Further update on Legal Aid Services response to COVID-19

13/8/2020 - Legal Aid will be processing invoices from providers where preparation for a hearing/trial was undertaken and the event was not able to go ahead due to the changes in COVID-19 Alert Levels. These invoices can be submitted as normal and will be paid if appropriate.

Improving the lawyer experience with the approval and contract processes for legal aid services

13/8/2020 - On Monday 3 August 2020, our new application form and supporting guidance for lawyers wanting to apply to provide legal aid services was made available on the Ministry website.

On Monday 17 August 2020, we will start to accept and process applications submitted on the new application form. At the same time, the updated contract for services and removal of the reapproval process will come into effect.

Originally, the application to provide legal aid services was split into four parts over 22 individual forms and 90 pages across all areas of law. The new updated form has been condensed into a single form that is now seven pages in total and relevant to all areas of law. The way we process applications has also been improved to reduce our processing time from 5-8 weeks to 15 working days.

Previously, a legal aid lawyer’s contract for services expired every two years and they were required to reapply for approval every 3-5 years to continue providing their services. There was no alignment between their contract ending and the reapproval process. We have now combined the contract with the application form and approval documentation when a lawyer first applies to provide legal aid services. The contract and a lawyer’s approvals won’t expire, and the requirement to reapply for approval has been removed.

These improvements are a result of feedback we have received from you. We are grateful to everyone who participated in the engagement and consultation process. Your support helped make this achievable. If you are considering applying to provide legal aid services we encourage you to submit an application. You can find more information on our Ministry website.

Update on Legal Aid Services response to COVID-19 (12 August 2020)

12/08/2020 - On behalf of Legal Aid Services I would like to update all legal aid providers on our response to last night’s announcement of a return to COVID-19 Alert Level 3 in Auckland and Level 2 nationwide.

Certain changes to Legal Aid policies which previously applied under Alert Level 2 will apply again. This means that:

  • Legal Aid will accept any applications that haven’t been signed by your client. Please sign any forms on their behalf and state the reason for not being able to obtain the signature and note this when submitting the form.
  • Providers who are working from home may claim expenses for travel between home and the Court, a place of detention or a Parole Board hearing venue where:
    • the distance is greater than 50 kilometres, or
    • the return travel time is greater than one hour.
    • This policy will only be available for one claim per day where an in-person appearance is required, and will also apply to Duty Lawyers.

We will continue to provide updates via ‘What’s New for Legal Aid Lawyers’ and thank you for your continued cooperation.

Ngā mihi

Brett Dooley, Legal Services Commissioner

Police Prosecutions (Bail) Application Fee

6/8/2020 - The audit program has raised an issue around when the ‘Applications and variations (opposed)’ fixed fee can be claimed for an opposed bail application. As you know, our claims process relies on providers claiming fees in line with legal aid policies so for that reason, I thought it would be helpful to provide you with some clarification on claiming this fee.

The applicable policy in the Grants Handbook on the Ministry’s website on when a fixed fee can be claimed is that:

A fee is payable upon completion. However, a fee may be claimed when a significant amount of work has been undertaken in good faith, even if the stage/fee has not been completed, for reasons outside of the provider’s control.

Whether the amount of work undertaken is significant enough to justify claiming a fee is a question of degree and judgement.

Circumstances where a bail application was not made but a claim may be justified would include where:

  1. a provider had, on the client’s instructions, completed a bail application to be submitted on a forthcoming date, obtained/checked bail addresses and gathered information/evidence in support. However, on the scheduled date, the client changed their instructions and the application did not proceed. Or,
  1. a provider had carried out the initial review and advice work and was instructed to pursue an application for bail. The provider had then carried out some further preparation of the application with the client. However, the client changed their instructions later in the day – so that no bail application was made.

In my view, a claim would be justified in the first example and depending on the work done, may be justified in the second. It wouldn’t be enough if the provider had only reviewed the opposition to bail with their client and the client had decided not to proceed with an application.

Tracey Baguley
Manager Legal Aid Services

Additional Case Review Hearings

30/7/2020 - It is becoming more common for District Court Judges to schedule additional case review hearings prior to judge alone trials.  The events are being called call-over conferences.  There is no separate call-over fee for judge alone trials. The Case Management Memorandum/ Case Review Hearing fee, which is repeatable, can be claimed if the Judge requires a memorandum to be submitted.  If no memorandum is required, the hearing time can be claimed. If there is additional preparation time that is not covered by the available fee (CMM/Case Review Hearing), an amendment to grant can be requested.

We will monitor the occurrence of JAT call-overs and may consider a revision to the fee schedules if they become countrywide/permanent.

Proposed Changes to the Legal Aid Provider Contract

30/7/2020 - In March 2020, the Ministry published an online consultation on proposed changes to the current Legal Aid provider contract.  This closed in June 2020 and the Ministry’s response document will be published on the Consultation Hub on Monday 03 August 2020.

We would like to take this opportunity to thank those that provided feedback, including the New Zealand Law Society.

In addition, the new Legal Aid approval application form and provider contract will be available on the Ministry website from 03 August 2020.

From the 17 August 2020, applications on the new form will be processed by the Ministry and the new contract will be sent to new providers from this date forward.

Existing providers will receive a variation to their current contract on 03 August 2020 (effective from 17 August 2020) to reflect the changes being made.

GST number requirement for invoices

30/7/2020 - This is a reminder about including your GST number on invoices. It is required information. Please ensure you submit invoices with all the required information including the GST number.  The invoice may be returned/rejected if it is not in the prescribed manner. The prescribed manner requirements for invoices are outlined on page 16 of the Grants Handbook.

Update on correspondence about Family Violence Proceedings

23/07/2020 – In July last year we advised that we were working with our ICT and vendors to make the necessary changes to the legal aid granting letters to reflect changes to the family violence legislation. This has now been completed. All new cases and correspondence created from 27 June 2020 will use the ‘family violence’ wording. The Family Fixed Fee Schedules on the Ministry’s website have also been updated to reflect these changes.

Mental Health Advocacy webinar being run by NZLS CLE Ltd

23/07/2020- On the 29 July 2020 the New Zealand Law Society Continuing Legal Education Ltd (NZLS CLE) will be running a webinar on Mental Health Advocacy.

This webinar will take a practical approach in looking at the legal framework in the area of Mental Health Law and will help ensure providers are able to apply this understanding when representing clients in Mental Health (Compulsory Assessment and Treatment) Act 1992 (the Act’s) proceedings.

Topics covered will include:

  • The rewards of advocacy for vulnerable clients and the need for diversity of representation
  • Overview of the Act’s compulsory processes
  • Understanding the key statutory roles provided for under the Act
  • Compulsory Treatment Order hearings.

The webinar will run from 11am-12:30pm on 29 July. Those attending the live webinar will be eligible to claim 1.5 CPD hours.

We would encourage any Lawyer who is currently approved to provide legal aid services in mental health law, and any lawyers interested in gaining approval in mental health law and being admitted to the Mental Health Legal Aid Provider rosters to consider attending this webinar.

Further details can be found on the NZLS CLE website below:

NZLS CLE Ltd Mental Health Advocacy Webinar(external link)

Improving the experience lawyers have with the approval and contract processes to provide legal aid services

17 July 2020 - The project was put on hold in March 2020 while the Ministry responded to the COVID-19 pandemic and it has now recommenced. In October we asked you to comment on the proposed new application form and guidelines for applying to be a legal aid provider.

Thank you to everyone who participated in this consultation process. The insights we received were valuable and the feedback was positive. This has been essential in shaping the final documents.

Today the Secretary has released a response to your feedback. This response, the new application form and guidance for applicants is available on the Ministry’s web-based platform, Consultation Hub.

Improving the legal aid provider experience - proposed changes to the approval process(external link)

You will be able to download the new application form and guidance documents from the Ministry website on Monday 3 August 2020. We will begin processing these applications from Monday 17 August 2020. We will be accepting applications received on the old application form until Friday 31 July 2020.

The simplified process will make it much easier to apply to provide legal aid services. We encourage anyone interested to submit an application.

Care of Children Fixed Fees

9 July 2020 - We have made one further update to the Care of Children fixed fee schedule to clarify that the Settlement Conference fee can be claimed for preparation and attendance at a round table meeting that is attended by Lawyer for Child. This ensures that all previous determinations are included in the schedule without reference to other notices or information. You can view the schedule in the below document.

Family Fixed Fee Schedules [PDF, 523 KB]

Criminal Cases Review Commission

6 July 2020 - The Criminal Cases Review Commission (the Commission) is an independent body established under the Criminal Cases Review Commission Act 2019 to investigate and review criminal convictions and sentences and decide whether to refer them under that Act to an appeal court. If the Commission decides to refer a case back to the appeal court, the court must hear and determine the matter as if it were a first appeal against the conviction or sentence.

Contact details for the Commission and their application form can be found on the Commission’s website: Criminal Cases Review Commission(external link)

Eligible Proceeding

From 1 July 2020, an eligible person (or a representative) may apply to the Commission for referral of a conviction or sentence to the relevant appeal court.

An application to the Commission is eligible for a grant of legal aid under section 6(e) of the Legal Services Act, where it is made by an eligible person. Under section 8(1)(a) of the Legal Services Act legal aid may only be approved if it is made by a person charged with or convicted of an offence.

Legal Aid Provider Approval

Cases where the right of first appeal from the original conviction is to the Court of Appeal require a provider who has a Court of Appeal/Supreme Court approval.

Cases where the right of first appeal from the original conviction is to the District Court or High Court require a provider who has a PAL3 approval, or PAL4 approval if the original conviction was PAL4.

These restrictions are also shown in the table below:

Original Convictions Right of first appeal was to the District Court or High Court Right of first appeal was to the Court of Appeal
PAL1 PAL3 approved provider Court of Appeal/Supreme
Court approved provider
PAL2 PAL3 approved provider Court of Appeal/Supreme
Court approved provider
PAL3 PAL3 approved provider Court of Appeal/Supreme
Court approved provider
PAL4 PAL4 approved provider Court of Appeal/Supreme
Court approved provider

Legal Aid Application

An application for legal aid for an application to the Commission should be made on the criminal legal aid application form that is available on the Ministry’s website: Application for Criminal Legal aid. [PDF, 341 KB]

In the appeals section of the application form (at questions 29 -30) the application should record:

  • that the appeal is an application to the Commission
  • what the application seeks to appeal (conviction, sentence or conviction/sentence)
  • the relevant offence
  • the court of right of first appeal against the conviction
  • why it is in the interests of justice for the Commission to refer the conviction or sentence to the appeal court. The explanation should address:
    • whether the eligible person has exercised their rights of appeal against the conviction or sentence
    • the extent to which the application relates to argument, evidence, information, or a question of law raised or dealt with in proceedings relating to the conviction or sentence
    • the prospects of the relevant court allowing the appeal
    • any other matter that is relevant.

The merits of any application will be assessed under section 8 of the Legal Services Act 2011, as if it were an appeal, taking into account any relevant information provided in it. When assessing the interests of justice, we will consider the prospects of the relevant court allowing the appeal in accordance with the requirements that govern the determination of merit in appeals.

Section 8 of the Legal Services Act 2011(external link)

The legal aid application form will be revised in the future to include these matters.

Maximum Grant

If approved, the grant will be on an interim basis and according to the criminal fixed fee schedules G (appeals to the High Court) or H (appeals to the Court of Appeal), depending on the court to which the Commission may refer the case. The fee for ‘Preparation of summary of issues to be raised on appeal’ will be available. For applications that would be referred to the High Court the fee is $1000. For applications that would be referred to the Court of Appeal the fee is $1000 for trial counsel or $1600 for new counsel.

If additional funding is required to prepare the application to the Commission, or to assist the applicant through the Commission’s process if it has made a decision to investigate, the provider must submit a request for an amendment to grant in the prescribed manner.

If the Commission refers the case to the relevant appeal court, a new application for legal aid will be required. The interest of justice factors will likely have been established by the Commission’s referral, however it is a new proceeding rather than an extension of the application to the Commission.

Provider Assignment

The aided person will nominate a preferred lawyer who must be:

  • approved in the appropriate category
  • have a contract to provide legal aid services
  • willing and available to undertake the assignment from the outset
  • based in the location where the applicant is.

The Commissioner will not usually assign a provider based outside the location where the applicant is. Exceptions will be made:

  • if the preferred provider agrees to pay for all associated travel costs to the CBD closest to the prison where the applicant is, if they are in custody; or
  • where no provider within the location is available.

Any other exceptions will be considered on their merits.

Care of Children Proceedings Changes

30 June 2020 - As advised in the What's New of 19/06/2020, from 1 July 2020, there are changes to the care of children proceedings fee schedule and invoice form 32A. The updated invoice Word template package is now available on the legal aid forms page of the website. The updated PDF version of form 32A will be available on 1 July.

Following on from the changes advised 19/06/2020 there are also two additional minor changes:

Firstly, the scenarios when the ‘Additional Factors’ fees are payable have been updated to include ‘Self-represented litigants are party to proceedings’.

Secondly, the policy in the grants handbook about interlocutory applications for ‘Reduction of time’ in care of children proceedings will be updated so that it is consistent for all proceedings.

Finally, just a reminder that sections 47B and 46E of the Care of Children Act about attendance at a Parenting Through Separation course and a Family Dispute Resolution process must be met before proceedings can be commenced. Accordingly, there is no eligible proceeding for legal aid until the requirements of these sections have been met.

0800 2 Legal Aid update

30 June 2020 - As advised previously, Legal Aid Services has been updating the telephone system which supports 0800 2 Legal Aid (0800 253 425). The new system goes live today.

The new phone system enables us to better prioritise calls relating to matters due to be heard in court the same day. If these circumstances apply to you, please select option two when you hear the menu options. For general enquiries, we ask that you select option one. We are also providing a new option specifically for prisoners on remand.

The new phone system will help us to gather better data about incoming calls, such as the volume, purpose and pattern of calls. Over time we can use this data to adjust and improve our service. The new system also allows more flexibility in terms of how the calls are routed, so we can assign our resources to match demand more closely.

Thank you for your patience while we completed these changes.

Expert Evidence in Strangulation/Suffocation Offences

25 June 2020 - During 2020/21, we expect that there may be an increase in the use of specialist medical evidence in cases that include charges for strangulation/suffocation. The Police obtained additional funding for this purpose in the 2020/21 budget.

We expect that in appropriate cases, legal aid providers may wish to engage their own medical experts to review and report on the prosecution’s medical evidence. In most cases, a medical report is likely to be the appropriate disbursement for this purpose. It is a pre-approved disbursement for criminal cases, except high cost cases. Funding for an appearance of an expert witness at court would require prior approval.

Changes to Legal Aid for Care of Children Act Proceedings

19 June 2020 - The Family Court (Supporting Families in Court) Legislation Act 2020 will repeal the following sections as of 1 July 2020:

  • S7A of the Care of Children Act 2004
  • S143(3A)(c) of the Care of Children Act 2004
  • S7(3A) Legal Services Act 2011
  • S7(3B) Legal Services Act 2011
  • S7(6) Legal Services Act 2011.

The effect for legal aid purposes is that from 1 July 2020, applications for legal aid for care of children proceedings will be assessed on the same basis, and granted the same fees, whether the proceedings were commenced on-notice or without notice. We have also taken the opportunity to make some other minor changes to the fee schedules.

Legal aid applications approved from 1 July 2020

An application for legal aid for on-notice proceedings that is received from 1 July 2020 will be granted the new schedule of fees.  You can see the revised fee schedule in the below document.

Care of Children Act 2004 Fixed Fees Schedule [PDF, 173 KB]

An application that is received before 1 July, but decided on or after 1 July, will be able to claim the new fees. For these cases, the initial grants schedule will not show the new fees. We will issue a revised grants schedule after the first invoice is processed. This is a system limitation for which we apologise. The new fees will appear on the revised invoice form 32A.

Legal aid applications approved before 1 July 2020

Most on-notice applications where legal aid was approved before 1 July will have been approved once a judge has directed that the case will proceed to a defended hearing. In these cases, the pre-hearing administration fees and the defended hearing stage fees may be claimed.

In those cases where lawyers were permitted to act before the defended hearing stage, the pre-hearing administration and applicable pre-hearing fees may be claimed. We will issue a revised grants schedule showing the revised fees when the next invoice is processed.

Other Care of Children Act Fee Changes

Interlocutory Hearing(s) – Preparation: An amendment to grant will no longer be required. A fee will now be available for preparing submissions for interlocutory hearings at $80 per anticipated half hour of hearing time. This is in addition to the existing fee for document preparation. If the new fee is not adequate in the circumstances, an amendment to grant may be submitted.

Complying with Judges directions: This fee will now be repeatable.

Issues conference preparation/hearing time: New fees have been added for preparation and attendance at an issues conference.

Specialist Reports: The specialist reports fee has been updated to clarify that it applies to considering any lawyer for child report.

Direction to draft orders: It has been clarified that this fee applies to a direction to draft further orders, whether signed by a Judge or a Registrar.

Pre-Proceedings Settlement

The existing family fixed fee for settlement of legal disputes prior to proceedings will be able to be claimed for care of children proceedings from 1 July. You can find the schedule under Pre-proceedings Settlements in the below document:

Family Fixed Fees Schedule [PDF, 523 KB]

It can be claimed where the matter is resolved at this stage and not in conjunction with other fees.

Alert Level 1 – Update on Legal Aid Services response to COVID-19

11 June 2020 - Now that New Zealand has moved to Alert Level 1, unless advised otherwise, the updates on Legal Aid Services’ response to COVID-19 that have been published on the Ministry’s website since 19 March 2020 will no longer apply. This change is effective from close of business, Friday 12 June 2020.  

We thank you for your assistance and cooperation during this time, in continuing to deliver our essential and priority services. 

Changes to Legal Aid for Care of Children Act 2004 Proceedings

11 June 2020 – The Family Court (Supporting Families in Court) Legislation Act 2020 changes which Care of Children Act (CoCA) proceedings are eligible for legal aid. The changes come into force on 1 July 2020.  From that date, legal aid may be granted for any CoCA proceedings, whether commenced on notice or without notice. The change will apply to new CoCA proceedings from 1 July and any proceedings commenced before 1 July that are not yet completed. Applications received before 1 July will be assessed in terms of the current legislation.

Proposed Changes to Legal Aid provider Contract

11 June 2020 - The consultation period for feedback on proposed changes to the Legal Aid provider contract will close on Friday 12th June.  You can find the consultation survey at Proposed changes to Legal Aid provider contract consultation(external link)(external link) and we look forward to hearing your views.

We are preparing changes to the Care of Children/Guardianship fee schedule and invoice form 32A. We will provide more detailed information next week.

Family Legal Advice Service policies will not be affected by the changes.

0800 2 Legal Aid message update

11 June 2020 - Following the temporary 0800 2 Legal Aid phone redirection arrangements during the COVID-19 response period, Legal Aid Services is reviewing and updating its telephone system. 0800 2 Legal Aid will be temporarily unavailable while we are updating the system. We ask that you continue to email any non-urgent enquiries. For any urgent legal aid grant enquiries, please call our legal aid debt line (0800 600 090) and press option 1.  

The new phone system will have some different caller options and call queue prioritisation, which should result in a better experience for callers. We will issue a more detailed update via What’s New within the next two weeks, before the new system goes live. Thank you for your patience.

Alert Level 2 – Update on Legal Aid Services response to COVID-19

Tēnā koutou katoa

22 May 2020 – As advised 15 May, the Legal Aid policy and process changes made in response to COVID-19 will continue to apply for at least another week. However the following exceptions and notices apply:

  • We are working closely with the PDS to apply a staged approach to resume the PDS undertaking new assignments from Monday 18th May and duty lawyer work from Monday 25 May as court services continue to increase back to business as usual.
  • During Alert Levels 3 and 4, the Legal Aid complaints and audit programmes were placed on hold.  Both programmes have now been restarted under Level 2.
  • The consultation period for feedback on proposed changes to the Legal Aid provider contract will close on Friday 12th June.  You can find the consultation survey at Proposed changes to Legal Aid provider contract consultation(external link) and we look forward to hearing your views.

There are also FAQs for legal aid providers on the Ministry’s website at COVID-19 Information for the legal profession and service providers

Ngā mihi
Brett Dooley, Legal Services Commissioner

Alert Level 2 – Update on Legal Aid Services response to COVID-19

Tēnā koutou katoa

15 May 2020 - The Government has announced New Zealand will move from Alert Level 3 to Alert Level 2 at 11.59pm on Wednesday 13 May. I have decided that the Legal Aid policy and process changes made in response to COVID-19 will continue to apply for at least the next 2 weeks after which time I will review future decisions.

Please note this doesn’t apply to the decisions about the PDS. We will be working closely with the PDS to apply a staged approach from Monday 18th May to resume the PDS undertaking new assignments and duty lawyer work as court services continue to increase back to business as usual.

There are also FAQs for legal aid providers on the Ministry’s website at COVID-19 Information for the legal profession and service providers

Ngā mihi
Brett Dooley, Legal Services Commissioner

Alert Level 3 – Update on Legal Aid Services response to COVID-19

Tēnā koutou katoa

24 April 2020 - As we move from Alert level 4 to level 3 next week, I can confirm that all the Legal Aid policy and process changes made in response to COVID-19 alert level 4 will continue to apply to level 3.

There are also FAQs for legal aid providers on the Ministry’s website at COVID-19 Information for the legal profession and service providers

I would like to thank you again for your patience and understanding and your continued commitment, especially in delivering our priority services.

Ngā mihi
Brett Dooley, Legal Services Commissioner

Update on Legal Aid Services response to COVID-19 (9 April 2020)

Tēnā koutou katoa,

We appreciate that these are unprecedented times and that you may have been dealing with different scenarios that you have not had to deal with previously.

We have received several enquiries from you regarding some of those and are working as best we can to address these as quickly as possible.

Please see our updates below this week in response to those enquiries, as well as, further clarification on previous updates.

As we approach the end of week two of the level 4 response period we thank you once again for your continued service during this time and wish you all a safe and Happy Easter!

Timeframe for claiming for payment for legal aid services

The Legal Services Regulations 2011 provide that claims for legal aid services must be submitted within six months. For fixed fee cases, the timeframe applies from completion of the services while for services delivered on an hourly basis it applies from the time the services were delivered. Claims that are submitted outside this timeframe because of disruption to providers’ administrative processes caused by the COVID-19 emergency will not be declined for being outside the timeframe.  Providers submitting claims outside the timeframe should include an explanation for the delay.

Information re eligibility

When assessing legal aid and where income has changed suddenly, we may consider the current income and project it forward for the next 12 months. Effectively that means where someone has recently become unemployed or lost access to income because of the current situation, we will assess eligibility on current income, if it is appropriate in the circumstances.

Family Legal Advice Service

The eligibility assessment for the Family Legal Advice Service is based on the client’s income for the past three months. However, clients may be assessed on current income when their financial situation has changed suddenly, as a result of separation and/or for someone whose proof of income from the previous three months is not valid, ie due to COVID-19.

To ensure that people needing family legal advice can receive the most appropriate service during the COVID-19 emergency, the Family Legal Advice Service may now be delivered by online video chat services. Providers will continue to be responsible for establishing eligibility of people seeking the service and must continue to retain evidence for audit purposes. Providers must obtain information from the person sufficient to complete the application form, except for the person’s signature. They must sight the relevant identification and eligibility documents and note appropriate information about them. For identity documents, the document name, number, date issued and expiry date should be retained. For eligibility purposes, providers should retain at least a description of the documents reviewed, their date and the 3-month income they established.

Additional Fees due to COVID-19 activities

There may be additional services required of you as a result of the COVID-19 lockdown. For example, in family cases we understand you may have assisted with negotiation of care arrangements during the lockdown. In criminal cases, adjournments may have required additional communications with your client, the court and other agencies.

Where additional services have been provided to, or on behalf of your client, as a result of the lockdown we will approve up to 2 hours at your legal aid rate for the case without needing an amendment to grant.

Your invoice should briefly describe the additional services and reference the COVID-19 lockdown.

Travel Policy

In our last update we advised that we had introduced a temporary policy where providers, who are working from home may claim expenses for travel between home and the Court, a place of detention or a Parole Board hearing venue where:   

  • the distance is greater than 50 kilometres, or
  • the return travel time is greater than one hour.

Please note that this updated policy also applies to Duty Lawyers during this time.

Duty lawyer Payments

When a duty lawyer is rostered to be available for the duty lawyer service, he or she may claim a minimum 2 hours, or the actual hours attended, if that is more than 2 hours.

Please note this applies to rosters as adjusted to reflect the COVID-19 situation.

We also understand that due to some hearings taken place via AVL, duty lawyers may be required to print disclosure or opposed bail paperwork.  

We are aware that there is currently nothing in the Duty Lawyer policy for disbursements, however, during this period, we will pay the standard $0.10 per page.

Duty Lawyer coverage

In relation to duty lawyer coverage, we can confirm that, for the duration of level 4 response period, we have agreed with PDS that all duty lawyer work will be provided by private providers.

Please note, this refers only to PDS duty lawyers on rosters, PDS Duty Lawyer Supervisors will continue to remain in place at PDS courts during this time.

Update on Legal Aid Services response to COVID-19 (1 April 2020)

Tēnā koutou katoa,

We would like to acknowledge, in the first instance, that last week was an extremely challenging time for everyone and there was confusion and uncertainty in how things would continue to operate whilst we respond to Covid-19.

Legal Aid Services would like to thank you for your patience and understanding and your continued commitment, especially in delivering our priority services.

We have received some more enquiries regarding our policies and procedures during this time so please see the updates below to provide more clarity of what this will mean for you as a legal aid provider during lockdown.

Travel policy

While appearances in Court have reduced to essential services only, an increasing amount of work is being done from home instead of usual places of business. 

It has been noted that this may require extra travel where court appearances are still required, and that this travel is not covered by the current travel expense policy. In recognition of this we have introduced a temporary policy where providers, who are working from home may claim expenses for travel between home and the Court, a place of detention or a Parole Board hearing venue where:    

  • the distance is greater than 50 kilometres, or
  • the return travel time is greater than one hour.

This will apply to Criminal (whether or not the provider is on the assignment list for a Court), Family and Civil matters for the duration of the COVID-19 level 4 alert period and will only be available for one claim per day where an in-person appearance is required. If a provider has several legally aided cases in one day it is expected that only one claim for these travel expenses will be made. 

The travel policies in the Grants Handbook on the Ministry's website have not been updated with this temporary change. The policies on travel disbursements continue to apply in all other respects.

Legal Aid Provider Contract

The Ministry of Justice is looking to consult with providers on a proposed variation to the current Legal Aid provider contract. The majority of the proposed changes are aimed at reducing the administrative burden imposed on providers by the current contract extension, reapproval and cancellation processes.  There are also some general provisions around privacy.   

This online consultation has been extended until further notice and can be found here:

Proposed changes to Legal Aid provider contract consultation(external link)

Update on Legal Aid Services response to COVID-19

Tēnā koutou katoa,

On behalf of Legal Aid Services, I would like to take the opportunity to give all our legal aid providers an update on our response to the COVID-19 situation.

I understand that this is a difficult time for everyone, and that many of you will be worried and have questions about how the Government’s response to COVID-19 will affect the functioning of Legal Aid Services.

Rest assured we are working hard to set in place continuity plans that will allow us to keep functioning and support the essential services that have been agreed by the judiciary(external link). We will also be continuing to pay invoices as quickly as we possibly can, however, we ask you to understand that usual service-levels may not always be possible in the current environment, as we are already functioning at reduced capacity.

Where possible we will be making changes to our current processes that will allow Legal Aid Providers to continue to work safely and remotely when needed. We have also made some decisions to re-prioritise our work programme that will hopefully alleviate any additional stress on you and enable you to focus on your own whanau and your business. These changes are listed below:

Signing legal aid forms

We understand that given the current situation it may not be feasible to get a legal aid application form signed by an applicant. As a result, for the foreseeable future, legal aid will accept any applications that haven’t been signed by your client. Please sign legal aid forms on their behalf and state the reason on the form for not being able to obtain the signature.

Updated 07/04/20 - If you are unable to print and sign the form, please note this in your email when submitting the form.

Reduced assignments and duty lawyer coverage

As I mentioned above, the priority services for the Courts going forward will now be to deal with custody matters. We appreciate, that this may have a financial impact for many of you with the cancellation of jury trials and the de-prioritisation of other assignments. For this reason, we are working closely with the Public Defence Service (PDS) and have agreed to reduce the number of future assignments assigned to them and similarly with duty lawyer rosters, to try and minimise the financial impact for some of you.

Availability

We appreciate that these are difficult times for all of us and some of you may be directly or indirectly affected by the virus or are cautious about attending court. Please follow the guidelines on our website if you are unsure what to do and contact the Provider Services team if you are unavailable.

To assist us to speed up our processes for opposed bail and reassignments for the next few weeks, we would appreciate it if you could email your respective legal aid office on a Monday to advise what days you are available for that immediate week. That will reduce the time we spend calling providers who are unavailable on specific days which will expedite speedy assignment.

Legal Aid approvals

As you may be aware, there is currently a project underway to improve our approval process, due to current circumstances, we have decided to place this project on hold until further notice. We will keep you informed of any developments as and when we are able to.

All current legal aid provider contracts and any approvals due to expire within this time will be extended until June 2021.

Due to our re-prioritisation of processes and resources, some of the current approvals processes will be affected. Those who have already submitted lead applications will be contacted directly to discuss the expected assessment timeframe. Providers who are yet to submit applications for lead approval are encouraged to delay submission until further notice.

Providers applying for supervised approval can continue to do so normally.

Those providers who required urgent approval to act in a specific case can still apply for a limited approval. Limited approvals are available in proceedings where:

  1. You are acting (or have acted) in a related proceeding, and/or;
  2. You have relevant specialist knowledge and skills, and/or;
  3. There is a shortage of existing providers in the region with the necessary skills and experience to act in the proceeding.

More detailed information about limited applications can be found on the Ministry website.

Legal Aid Audits

As you know the Ministry frequently conducts audits of its contracted service providers. Although audits are an important means of ensuring the quality of the Ministry’s contracted services, they have not been confirmed as critical.  Legal Aid Services recognises that its providers in the community are themselves responding to these unprecedented events we are in and that it would be inappropriate to continue with the current audit programme at this time.

In making this decision the Ministry is also aware of the most recent advice concerning domestic travel and physical distancing practices.

For those reasons, all provider audits will be paused until further notice. If we require any further information from you regarding audits that are already underway, we will be in touch.

Legal Aid Complaints

The Ministry is also placing a pause on all activity surrounding complaint investigations that are currently underway and no further action is required by those providers affected by this notice. 

If you have any questions regarding approvals, audits or complaints please direct them to legalaidprovider@justice.govt.nz.

We are currently working through the details of our continuity plan and will be communicating any further information to you through What’s new for Legal Aid Lawyers and through the Law Society as soon as we have more information to share.

I would like to thank-you all for your cooperation during this time, your continued hard work and commitment to legal aid and to our customers is greatly appreciated.

Ngā mihi

Brett Dooley, Legal Services Commissioner

Ministry of Justice survey on legal aid provider contract

19/03/2020 (Updated) - From Thursday 19 March 2020, the Ministry of Justice will be looking to consult with Legal Aid providers on a variation to the current Provider Contract.  The majority of the proposed changes relate to the ‘Improving the Legal Aid Provider Experience’ project and are aimed at reducing the administrative burden imposed on providers by the current contract extension and reapproval processes.  However, we are also taking the opportunity to include some general provisions around privacy.  Survey questions will be published on the Ministry’s Consultation Hub and will close on 14 April 2020.

Ministry's Consultation Hub: Improving the Legal Aid Provider Experience(external link)

Junior counsel pre-approved for Court of Appeal/Supreme Court hearings

05/03/2020 - We are making a minor change to legal aid policy that we hope will provide more opportunities for junior counsel to gain experience in Court of Appeal/Supreme Court proceedings.

The change is due to feedback we received during the 2018 review of legal aid, and from the Judiciary. In Court of Appeal and Supreme Court cases, where fixed fees have been replaced with a grant of hours, or it is a high cost case, the appointment of one junior counsel to attend the hearing of the appeal will now be pre-approved where research or preparation has been delegated to them prior to the hearing. The pre-approval is conditional on the lead provider believing that the assistance of junior counsel at the hearing is justified and that the junior counsel’s research/preparation hours have or will be invoiced against the hours previously approved for the grant.

The change has been included in the grants handbook available on the Ministry’s website and is effective for relevant hearings from 5 March 2020.

You can find the latest version on the page Grants Handbook.

Multiple fees may not be claimed for the same activity on separate grants of aid

05/02/2020 - It is Legal Aid policy that where separate grants/charges are sentenced at the same hearing, then only one claim can be made for the sentencing activity and hearing time. In the same way, it has been Legal Aid Service’s expectation that multiple fees for the same activity may not be claimed on separate grants of aid. For example, where a customer has more than one grant of legal aid for multiple criminal charges and a bail application is prepared that applies to the charges on both grants, one bail application fee may be claimed. Following recent queries, we have updated the Grants Handbook at page 98 to confirm that multiple fees for the same activity may not be claimed on separate grants of aid.

Applications emailed or faxed to Legal Aid offices from courts

05/02/2020 - When an application for legal aid is scanned or faxed to Legal Aid by a Duty Lawyer, please note that Legal Aid do not require the physical copy to be posted. The physical copy can be destroyed.

Subsequent Directions fee for Domestic Violence (Applicant) applications

05/02/2020 - The ‘Subsequent Directions’ fixed fee under Domestic Violence (Applicant) shown below is only to be claimed when, in order to progress an application under the Victim's Orders Against Violent Offenders Act 2014, it is necessary to discharging any existing protection order(s).

Criminal case assignment: Availability during the Christmas break

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