Legal Aid Grants Manual rewrite
The Legal Services Agency (LSA) is to rewrite part of its Grants Manual and to consult the Law Society, among others, in the process.
The decision for the redraft arose from a 10 September High Court hearing of an appeal by the LSA against four rulings* of the Legal Aid Review Panel (LARP). LARP had reversed four LSA decisions requiring interim payments of $1,300 to be paid in instalments by each of the four respondents. The appeal was adjourned part-heard while the manual is rewritten.
The importance of the case saw an amicus curiae appointed for two respondents not otherwise represented and the Law Society given leave to intervene, represented by Mary Scholtens QC.
The case concerned applications for grants of legal aid in relation to criminal matters. Each of the respondents was on an invalid’s benefit and three were unsure of their pleas at the time of application, with the fourth planning to plead not guilty. There were also uncertainties as to how the cases generally might develop.
The LSA granted legal aid to each respondent but imposed an interim repayment condition of $1,300 in each case to be paid by instalments. Factors regarding the making of repayment conditions on grants, including interim repayments, are covered in Part 9 of the LSA’s Grants Manual.
The issue on appeal is whether LARP erred in law by holding that Part 9 of the LSA’s Grants Manual improperly fettered the LSA’s discretion in determining the amount of an interim repayment.
After hearing some initial submissions, the court noted that there were difficulties with Part 9 of the Grants Manual. For example, there was a conflict as to whether an interim repayment condition was required in all cases or whether the Grants Officer had a discretion. Also, there was no reference at all to the possibility of the LSA (or one of its Grants Officers) making a grant of legal aid on an interim basis pending further consideration of the application, which might be necessary for a range of reasons.
Accordingly, Stevens J said: "I am satisfied that there will be a need to rewrite Part 9. It will be extremely helpful for the court to have this available before any judgment is issued."
After taking instructions, all counsel agreed that such a redraft could occur. The court said the LSA would carry it out in consultation with John Oliver as amicus, Mary Scholtens as counsel for the NZLS, and Peter Gorringe and Steven Zindel for the respondents.
"Such consultation will be valuable because it will ensure that the practical interests of the system of granting legal aid in criminal cases can be addressed at the time when the Grants Manual is redrafted."
Noting that the LSA might wish also to consult the Ministry of Justice, Stevens J said that the ministry might be interested in the court’s preliminary view. This was that the relevant sections in the Legal Services Act involved the exercise of an administrative discretion, as submitted on behalf of the respondents.
"I emphasise, however, that I have not determined any final view. That must await the completion of the hearing of the appeal," he said.
Once the redraft is completed, a copy is to be filed, along with memoranda from counsel addressing how the appeal might be disposed of. Mary Scholtens is working with the NZLS Legal Services Committee in providing the society’s input to the manual redraft.
* LSA v Graham & Ors, High Court, Auckland, Minute, 10 September 2008, CIV 2007-404-7732.