West African Institute for Legal Aid

APPLYING FOR LEGAL AID

THE WEST AFRICAN INSTITUTE FOR LEGAL AID (WAILA)

Appeals and Complaints

Appeals from Refusals of Aid

Where an application for legal assistance is refused or granted subject to conditions, the applicant may, within fifteen  days after receiving notification appeal against the decision. The applicant’s lawyer or other professionals assisting the applicant may provide a letter in support of the appeal. The WAILA’s Client Relations Coordinator may also be able to assist clients with appeals. The appeal is initially reconsidered by the grants officer and if the original decision is upheld, it is referred to the Commissioners. If the client’s circumstances have changed, then it may be worthwhile to reapply for legal aid.

Aid to other parties

A party who alleges that another party is ineligible for legal aid funding may write to us providing such information as they consider relevant and we will look into the matter. Please direct this correspondence to the Client Relations Coordinator. We will acknowledge receipt of your letter. However, due to the confidentiality provisions, we are not at liberty to provide you with any confirmation or otherwise of the matters alleged or the outcome of any investigations. We cannot disclose any information about another person’s situation.

Complaints

If anyone has a complaint about WAILA, they can contact the Client Relations Coordinator on+491786154756 or by email to wailagambia@gmail.com

The Client Relations Coordinator can also provide assistance in lodging appeals against refusals of aid and help to identify other sources of assistance.

THE WEST AFRICAN INSTITUTE FOR LEGAL AID (WAILA)

Documents to Lodge

To lodge an application for legal aid for a client, you should send to  WAILA Legal Services Department the application form (including a completed legal practioner’s certificate, if appropriate)

a covering letter, and

all relevant supporting documents.

The application form

Your client should complete a legal aid application form giving full details of his or her financial situation and that of any financially associated person (including a spouse, de facto partner, company, trust, or anyone else who provides or should provide financial support). The current application form is included in Forms.

If you consider that the case has merit (see Eligibility for Legal Aid), you should sign the solicitor’s certificate on the last page of the application form.

The Legal Aid Application form must be signed by the applicant.  However the Commission is aware that from time to time this may not be possible. Accordingly, it has been resolved that this requirement may be dispensed with in cases where the applicant’s solicitor has no proper opportunity to obtain the signature of the applicant and, in the opinion of the Director, the failure to obtain the client’s signature is due to circumstances beyond the practitioner’s control.  Generally, this will be when a matter is before a court and the client is not present.

In such a situation it is still necessary for an application form to be submitted and the practitioner must confirm, when lodging the application form that–

he or she has properly advised the applicant of the requirement to provide true and correct information and that the applicant has agreed to be bound by the information provided; and

the information provided on the application form is a correct account of the applicant’s current situation, as told to the practitioner, and the applicant has acknowledged that he or she understands the conditions under which legal aid may be granted or refused.

 This practice will be trialled for an initial period of six months.

The lawyer’s letter

You should also send a letter explaining the background to the case, and the purpose for which aid is needed. Your letter may make submissions as to your client’s eligibility if you wish. For example, in a criminal case, you may wish to address the issue of whether your client is at risk of imprisonment and why; in a family case, it is helpful if you disclose any attempts to resolve the matter thus far (for example, if the parties have tried counselling) and the outcome, and factors such as intervention orders and domestic violence. In criminal cases, you should also enclose a copy of the relevant Information, and outline in which court(s) the matters are to be dealt with. Where there are multiple charges in different courts, practitioners are requested to clearly set out the extent and the nature of the grant(s) being sought, and the particular courts where the matters are to be heard.

Supporting documents

Attach to the application form copies of:

all your client’s bank statements for the last two months (including statements from building societies, credit unions and like financial institutions)

those of the financially associated person

if your client is on a pension or benefit, a copy of a statement of entitlement from Centrelink and a copy of their current pension or health care card

if your client is working, pay slips for the last two pay periods

if the financially associated person is working, his or her pay slips for the last two pay periods

if your client is self-employed, a copy of the last tax return or a profit and loss statement

if the financially associated person is a company or trust, its financial records for the last tax year.

Please note that:

if we do not receive the above proof of your client’s means, we will not process the application for aid. We will probably send it back.

if your client is in custody at the time of applying, he or she may be unable to furnish complete financial details immediately. In that case the application should clearly show that he or she is in custody, and supply whatever financial information is reasonably available. Generally, applicants in custody can still arrange for family or friends to assemble the required verification and can still give details of assets.

if your client is under the administration of the Public Trustee, you will need to obtain the supporting documents from the Trustee before lodging the application. If the matter is extremely urgent, the Trustee should be requested to forward the statements of the managed estate directly to us, and you should attach a copy of your request to the application to indicate that the necessary supporting documents are on their way.

if for any reason these documents do not accurately portray your client’s financial position (for example, your client has just lost their job, or the work is casual and wages have recently been higher than usual), you should point this out in your letter.

in some cases we may ask for further information or proof, such as records of termination payments, business books, rates notices, etc. If you think we might need this information in a particular case, you should send it in initially so that the application can be processed as quickly as possible.

you should send with the application copies of relevant documents. For example, in a criminal case, please send a copy of any documents setting out the charges.

THE WEST AFRICAN INSTITUTE FOR LEGAL AID (WAILA)

ELIGIBILITY FOR CIVIL AND CRIMINAL LEGAL AID

Due to funding constraints, some limitations are placed on the granting of legal aid. We do not grant legal aid for all legal problems; for example, we cannot fund commercial or business matters.

Certain civil disputes up to $13000 can be heard in the minor civil claims jurisdiction of the Magistrates Court where no legal representation is required. WAILA  will provide free advice to assist with minor civil matters.

In criminal matters there must be a likelihood of a   sentence. Family matters (other than an emergency) must involve a genuine dispute over children that is not resolvable by negotiation or counselling.

The Grants Section of WAILA  is responsible for assessing each application received for legal aid. It uses 4 broad criteria to assess an application for assistance. In addition to the means, merits and forum tests, an application for assistance is also assessed as to whether it is within the funding guidelines. The application must satisfy all 4 criteria before legal aid can be granted.

Means Test

The means test determines how much a person with any given income and assets can afford to pay for necessary legal services. The income and assets of any financially associated person are treated as if they were the income and assets of the applicant unless they are in legal conflict. A financially associated person is any person or company whom the applicant could reasonably be expected to receive money from or give money to, for example, a spouse or de facto partner.

Income

The income test is applied to the applicant’s weekly disposable income which is total income of the applicant (and any financially associated person) less income tax, housing costs, child-care costs and maintenance payments actually paid for the support of a child or former spouse. Family allowances are disregarded.

An applicant whose disposable income is less than the poverty line would be assessed at the minimum contribution level.

Assets

In addition to income, the client’s assets will affect their eligibility for legal aid. However, the assets test does not include the clothing, tools of trade, household effects and furniture of the average person or an average house or car.

Proof of Means

You (and your spouse/de facto partner) must provide proof of your income and assets with your application for legal aid. This can be copies of recent pay slips over 4 weeks, a letter from your employer stating weekly income or a taxation group certificate or taxation return. A copy of a Centrelink income statement is also acceptable. As well, the Commission will need to view copies of bank statements or passbooks showing the balance over the last two months in all accounts (a teller slip stating the current bank balance is not sufficient). If you own real estate, a copy of council rates or water rates notice showing the property value must also be shown.

If these documents do not accompany the application, it will not be processed but will be sent back to you.

Statutory Charge

Where you or your financially associated person own real estate, legal aid is really only a loan. Once the cost of the matter goes over $2,280, WAILA will register a charge over the property. The charge makes sure that you pay back the whole of the legal aid eventually. It applies to any real estate in which you or your financially associated person have an interest. It does not matter whether the real estate is fully paid off or whether there is still a mortgage.

When the property is sold, transferred, re-financed or further mortgaged, or when the owner dies, the full amount must be paid back. If the client wants to pay it back sooner, they can arrange this.

The Commission will not force the sale of the property except in very rare cases

Merits Test

The Commission must be satisfied that the legal matter involved is an appropriate expenditure of public legal aid funds. Where the matter has no reasonable prospects of success, legal aid is refused. In serious criminal matters, the existence of a “reasonably arguable” defence may suffice.

The WAILA’s aim is to put applicants into an equal but not better position than private individuals who, of course, risk their own funds. If it is considered reasonable for a solicitor in private practice to act in expectation of costs being recovered in due course from settlement funds, then legal aid is refused.

Forum Test

WAILA will only grant aid for cases to be heard countries where we work.

Guidelines

WAILA has set guidelines regarding the type of work it will handle. Legal aid is normally not provided for the following:

Divorce. A divorce application is available online from the Commonwealth Courts Portal. Help in completing the forms is available through WAILA’s offices and more information is available on the Federal Circuit Court website. In circumstances where a do-your-own divorce is not appropriate, such as where the applicant has language difficulties or if the divorce is particularly complex, then legal aid may be available.

Family property settlements, unless there are special circumstances.

Traffic offences, including drink driving, unless there is a real risk of imprisonment or the applicant has special circumstances that justify assistance.

Conveyancing

Probate or claims on deceased estates

Complaints against lawyers. These should initially be referred to the Legal Profession Conduct Commissioner for investigation. Legal assistance may be subsequently granted where the available evidence justifies legal proceedings.

Complaints against Police. These should initially be referred to the Office for Public Integrity for investigation. Legal assistance may subsequently be granted where the available evidence justifies legal proceedings.

Defamation cases

Neighbour and Fencing Disputes

Bankruptcy Act matters

Applying for or defending Intervention Orders. However, legal aid may be available to clients charged with a breach of an Intervention Order. The Police can assist clients to apply for an order. The Legal Services Commission has a Domestic Violence Legal Adviser available to assist persons where domestic violence is a factor.

Unfair Dismissal applications

Matters where other agencies can provide appropriate assistance. These include simple consumer complaints (Consumer and Business Services) and Wills (Public Trustee).

Minor Civil Claims matters which fall within the civil jurisdiction of the Magistrates Court. Advice on claim procedures is available through our Free Legal Advice Service.

Minor criminal matters and minor drug offences – either where there is no penalty of imprisonment provided by the legislation, or there is no real risk of imprisonment being imposed.

Victims of Crime Compensation proceedings except where exceptional circumstances exist. Private lawyers will handle these cases and claim their fees from the Victims of Crime Fund.

Commercial matters and disputes arising out of businesses such as commercial leases, liquidations, shares, purchase of businesses, or disputes arising out of commercial activities.

Matters where private lawyers are prepared to act where costs will be able to be recovered from the settlement in due course, such as family property settlements or personal injury matters.

Special/Exceptional Circumstances

The specific guidelines can be waived in cases involving special or exceptional circumstances. These can include undue hardship, financial or otherwise, to the applicant if legal assistance were not provided, or emergency situations in which the liberty, livelihood, possessions or physical and mental well being of the applicant and any dependants are threatened.

Funding Caps

Where the cost of a case reaches its funding cap, no aid or extension of existing aid beyond the level of the funding cap will be granted. In criminal law cases, the funding cap is $50 000 or $100 000 where more than one party is receiving legal aid. In Commonwealth family law cases, the funding cap is $16 500 for each parent or guardian.

THE WEST AFRICAN INSTITUTE FOR LEGAL AID (WAILA)

Notification of the Decision about Aid

If aid is granted

If your client has nominated you as their chosen lawyer, we will in most cases refer the matter to you if aid is granted. Before referring a legally aided matter to you we must be satisfied

that you have the demonstrated expertise to handle the particular matter

that appointing you as their lawyer does not and will not impose any exceptional cost burden on WAILA, and

that you will comply with all our requirements (see especially Professional considerations when acting for a legally aided client).

If a matter is referred to you on a grant of aid, you will receive a letter confirming that you have aid, and a certificate specifying the amount of commitment, and identifying what aid is for. Some of the most important conditions of aid are mentioned in that letter.

At the same time, your client will receive a letter asking them to make an appointment with you, and a printed sheet setting out the conditions of the grant of aid. The client is also told the amount of the initial contribution they should pay you.

If it is your firm’s practice, or the client’s request, that the client’s mail from us be directed to your office, please ensure that the client personally receives the mail and that it is not just added to the file. This is because it is very important that the client understands the conditions of aid and accepts them.

If aid is refused

If aid is refused, you and your client will each receive a letter giving the reason(s) for refusal and advising of the right of appeal (see Appeals).

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