What's new for legal aid lawyers

Criminal fixed fee review - second set of changes

In September 2014, the Legal Services Commissioner (the Commissioner) undertook a review of the criminal fee schedules. The review concluded in December 2014 and identified a number of areas where improvements to the design and flexibility of the fee schedules could be made, as well as areas where gaps existed.

In October 2015 the Government approved an increase in legal aid funding, staged over financial years 2016, 2017 and 2018, to enable the Commissioner to revise the criminal fee schedules including improvements to their design and flexibility, as well as addressing gaps and issues identified by the review.

In February 2016, the Commissioner announced three new sets of criminal fee schedules, with each set to be released at the start of the new financial year to coincide with each annual government budget cycle.

The first set of revised fee schedules took effect on 4 July last year, for new criminal grants of legal aid where the application was received between 4 July 2016 and 2 July 2017.

The second set applies to all new applications received on or after, Monday, 3 July 2017.

A short YouTube video presentation (external link) has been prepared with practical advice on working with the second set of changes. We encourage you to watch the presentation .

New PDF forms along with an updated installer package can be downloaded from the Ministry of Justice website from 26 June 2017.

Revised delegation of work policy

Legal Aid Services has recently revised its policy on delegation of work.

The revised policy clarifies when specific substantive matters may be temporarily delegated to another lead provider without needing the Legal Services Commissioner's approval. It also authorises an appropriately approved ‘Alternate’ who is named in the lead provider’s contract for services to submit invoices on behalf of the lead provider when the lead provider is unavailable.

You can view the revised policy from page 49 in the legal aid Grants Handbook.

Legal Aid Services Request for Family Court Documents

The Family Law Section (FLS) and Legal Aid Services (LAS) have obtained respective legal opinions on the issue of requests by grants staff to legal aid family providers seeking the supply of copies of family court documents that are held on that provider’s file.  Those opinions have unfortunately reached contrary conclusions as to whether the providers are required to forward such documentation to LAS.

FLS published a bulletin article on 20 December 2016 on this subject that was subsequently withdrawn, as it did not accurately reflect the respective current positions.  After further discussions, FLS are publishing an amended article, but LAS still does not consider that it appropriately sets out the rationale for the position being taken by LAS.

When this issue first arose some years ago, LAS (then the Legal Services Agency) obtained an opinion from Graham Taylor that concluded that the family court publication provisions then in force did not cover communications of information to the Legal Services Agency for the purposes of legal aid.

Following subsequent opinions that were obtained by the Family Law Section that reached a contrary conclusion, LAS obtained an opinion from Francis Cooke QC on 2 March 2015.  In the meantime there had also been statutory amendments that reduced the confidentiality associated with Family Court proceedings.  Mr Cooke QC’s opinion concluded that the relevant statutes “clearly” did not prevent LAS from obtaining information in order to make decisions contemplated by the Legal Services Act.  The provision of such information did not amount to “publishing” that material.  The requested material would already be on the provider’s file and it was not necessary to seek it from the family court.

LAS considers that the FLS view that in every case where a copy of a Family Court document is sought then LAS would be required, instead of making a request of the provider, need to make an application to the Family Court under r. 429 Family Courts Rules 2002 is not considered practical.  There would potentially be many thousands of such requests each year and LAS believes that this process would be administratively burdensome to both LAS and Family Court staff.  Delays in the granting process would also be likely to result.

LAS believes that an appropriate statutory amendment to s. 108 Legal Services Act and related legislation would be the most constructive way to resolve this difference of opinion.  Any such an amendment is however likely to be some while away and in the meantime, LAS will continue to make appropriate requests of legal aid providers when required in reliance upon the guidance received in its opinions.

Duty lawyer invoicing

This is a reminder for duty lawyers; when you are completing your Duty Lawyer Attendance and Invoice form that:

  • your writing on the invoice form is legible
  • the time format is used consistently – either using minutes or hours
  • your invoice is signed
  • your GST number is included, if applicable
  • the name of the court is included on the invoice, if it is not already included on the form
  • only one copy of the invoice is sent – we do not require a physical copy of an invoice if it has previously been emailed or faxed to us.

Correctly completed invoices will assist with the timely processing of your invoice. For more information see the Duty lawyer service – Operational policy.

Christmas Payments

The last date for direct credit payments to providers for 2016 is Thursday, 22 December. Payments will resume on Wednesday, 4 January 2017.

Criminal Case Assignment Christmas and New Year availability

The end of the year is fast approaching! Remember, if you have leave planned over the festive season for a period of more than 5 working days, please complete the Criminal Case Assignment availability form and email it to legalaidprovider@justice.govt.nz. This will allow us to identify any areas where provider coverage may be limited and will ensure that you do not get disturbed unnecessarily during your break.

Legal aid processing delays

10 November 2016 - Due to a fault with the legal aid operating system, the processing of legal aid applications, invoices and correspondence may be delayed. We are working to ensure that service delivery timeframes are maintained with minimal disruption as soon as possible.

If you have an urgent request and have not received a response, please let your legal aid office know. We apologise for any inconvenience this may cause.

Changes to the reconsideration/reassessment process

31 October 2016 - As part of the Ministry's move to continually improve services for our customers and optimising legal aid processes, our new optimised processes go-live on Monday 7 November 2016. You may have seen this attachment that shows how we are changing the way we work [PDF, 368 KB].

From Monday, 7 November 2016, the reassessment process will be removed to leave only the reconsideration process available for challenging Commissioner decisions. 

This will mean that any decisions you are aggrieved by will always be reconsidered by someone other than the person who made the original decision, in a timely manner. We encourage you and your clients to use the revised form 11 - application for reconsideration. [PDF, 485 KB]

 If you have any questions, please contact your local grants office.

Legal aid payments to firms

20 October 2016 – All legal aid payments made to firms during the period 1 July 2015 to 30 June 2016 can be found in the below attachment.

View legal aid payments to firms – 1 July 2015 to 30 June 2016  [PDF, 758 KB]

The payments to firms are for legal aid services provided by listed providers under the legal aid schemes. The payments include the fees of listed providers, including those claimed on behalf of other listed providers, and disbursements for general office costs, travel costs, and special disbursements, which include fees for agents, expert witnesses, forensic tests, interpreters and special reports, such as medical or valuation reports.

New contract and practice standards for legal aid providers

28 September 2016 - Following consultation with legal aid providers and the legal professional bodies, we have finalised the new contract and practice standards for legal aid providers.

The new contract is more streamlined and clarifies existing rights and obligations. It might look different, but nothing of substance has changed. We have added a few minor obligations for providers that reflect good professional practice, and that won’t be onerous for providers. For example, we have included steps a provider and their firm must take before releasing proceeds of proceedings to legal aid clients.

We received consultation feedback from the New Zealand Law Society (NZLS) and a small number of providers. The NZLS considered the proposed improvements will help providers more clearly understand their rights and obligations. There was general support for the new obligations and some suggestions about amending them to make compliance more practicable.

We’ve taken this feedback into account and, as a result, we believe the final documents are more effective, transparent and robust.

We will send you the new contract in mid-October and it needs to be signed and returned to us before the current contract expires on 30 November.

More information is available on the Ministry website:

Changes to the administration of granting and debt management

13 September 2016 - As part of the Ministry’s move to continually improve services for our customers we are changing the way we administer legal aid.

The first phase of this transformation, involved closing our three smallest offices (Hamilton, Whangarei and Dunedin) in 2015 to improve the consistency and standardisation of our legal aid granting functions.

Having reviewed the way we administer granting and debt management, we will be moving to a new operating model that will optimise our processes for both granting and debt management. It will also build the foundation for future technology advancements and digitisation.

The changes involve reducing granting offices from eight to two in Takapuna and Wellington. We will also be creating an organisational structure focussed on national delivery of legal aid services.

As a result you can expect greater consistency in granting decisions. You can also be assured that existing knowledge and capability will be consolidated.

To continue to deliver quality legal aid services the office consolidations will be phased in from late January to late June 2017. Please refer to the attachment that shows how we are ‘Changing the way we work’ [PDF, 368 KB].

We will keep you informed of developments.

Issue with invoice form 32a - Care of Children/Guardianship

4 August 2016 - An issue has been identified with the latest version of tax invoice 32a - Care of Children/Guardianship proceedings. Version 07/16 of form 32a, which is included in the latest Word template installer (version 10) incorrectly, has a cap of 9 units on the fixed fee for Defended hearings (s) – Preparation, as illustrated below.

We have raised this issue with the external supplier, who manages our Word template forms. They are currently working on a replacement form to address this issue.

In the interim, lawyers who need to claim more than 9 units (hours) for Defended hearings (s) – Preparation, will need to use the PDF version of the forms found on our website (external link) .

Criminal assignment availability

29 July 2016 - The policy for criminal assignment availability is being updated to improve how Legal Aid Services allocate criminal cases.

From 1 August 2016, if you are unavailable to take criminal assignments for a period of 5 or more working days (instead of the current 10 working days) you must complete the Criminal Assignment Availability form or detail your unavailability in writing. The completed form or written notification should be sent by email to the Provider Services team at legalaidprovider@justice.govt.nz and copied to your local legal aid office. The Provider Services team will remove you from the applicable criminal case assignment list for the period of unavailability to prevent cases being assigned.

If you have any questions about this change, please contact your local legal aid office.

Form 50 - Expert request now in editable PDF format

28 July 2016 - The Expert request form (Form 50) is now available in an editable PDF format, which enables the form to be filled in online. The editable form can be found on the PDF legal aid forms page of the Ministry of Justice website.

Please note: Form 50 is not included in the Word template installer.

Temporary Approval and Limited Approval Operational Policies for Legal Aid Providers

21 July 2016 - In May this year, we sought feedback on proposed additions and changes to our Legal Aid Provider Manual to incorporate Part 1a – Limited Approval Operational Policy and Part 1b – Temporary Approval Operational Policy. Overall, the proposed additions and changes reflect recent amendments to the Legal Services (Quality Assurance) Regulations 2011 that improve and streamline the legal aid provider approval process.

The proposed changes were circulated to the New Zealand Law Society (NZLS), the New Zealand Bar Association, the Criminal Bar Association, and the Auckland District Law Society. The NZLS published the consultation documents in Law Points and we received a response from the NZLS’ Legal Services Committee on behalf of the organisation.

We wish to thank those who responded for their feedback. Your comments were much appreciated and assisted in clarifying and finalising the policies.

The consultation feedback document and updated polices have now been finalised and can be viewed on the below links.

The consultation feedback document [PDF, 106 KB]

Part 1a – Limited Approval Operational Policy [PDF, 174 KB]

Part 1b – Temporary Approval Operational Policy [PDF, 162 KB]

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