For legal aid to be granted for representation in the Administrative Appeals Tribunal for social security and other commonwealth benefit matters the following tests must be satisfied:
Documentary requirements
Application received from client
Applicants seeking a grant of legal assistance for a ‘second review’ by the General Division of the Administrative Appeals Tribunal should forward all of the following documents for assessment:
- A completed and signed Legal Aid Queensland application form.
- Proof of income and assets (refer to the means test).
- All relevant documentation relating to the appeal including:
- the original decision made by Centrelink (Department of Human Services)
- the 'first review' decision made by the Social Services and Child Support Division of the Administrative Appeals Tribunal.
Application received from preferred supplier or in-house practitioner
Practitioners seeking a grant of legal assistance for a ‘second review’ by the General Division of the Administrative Appeals Tribunal should electronically submit an application for aid via the Grants Online system along with:
- Proof of income and assets (refer to the means test).
- Details how the applicant meets guideline 2 – social security and other commonwealth benefits.
- All relevant documentation relating to the appeal including:
- the original decision made by Centrelink (Department of Human Services)
- the 'first review' decision made by the Social Services and Child Support Division of the Administrative Appeals Tribunal
- How the matter meets the merits test.
Practitioners must also ensure that the following documents are retained on file:
- A completed and signed Legal Aid Queensland application form.
Interpretation
The applicant may incriminate himself or herself
Legal Aid Queensland may consider an applicant may incriminate himself or herself in a social security and other commonwealth benefit matter when:
- the applicant has knowingly and intentionally under declared or not declared income and assets, and
- the overpayment sought to be recovered is relatively large.
The case is complicated
Legal Aid Queensland may consider a case is complicated where:
- The overpayment has occurred over a lengthy period of time and there is a significant volume of financial records.
- There is a significant aspect of the legislation that needs to be challenged where limited case law is available.
- There is a discretion in social security law.
It is the responsibility of the practitioner to provide details of the complex nature of the specific case in order to receive funding under this guideline.
Significant medical evidence
Legal Aid Queensland may consider there is significant medical evidence when:
- The matter relates to a disability support pension being claimed or where there is a question of incapacity.
- A large volume of medical evidence has been obtained by the applicant to support their claim.
- The medical evidence is contested.
Special circumstances
For legal aid to be funded under this policy please refer to special circumstances of the applicant priorities in the Commonwealth Legal Aid Service Priorities.
The appeal involves an importance or complex question of law
Legal Aid Queensland may consider an appeal involves an important or complex question of law when:
- It appears that the applicant has not been provided with constituted adequate notice under law,
- It appears that the eligibility or qualification of the applicant has been misinterpreted, or
- Where the consequences may be far reaching or involve systemic errors.
It is the responsibility of the practitioner to provide details of the important or complex question of law for the specific case in order to receive funding under this guideline.
Grant(s) of aid
The grant of aid to investigate the prospects of success of an appeal to the AAT is T34.
The grant of aid to apply to the AAT and appear at day one of hearing is T3.
Extension(s) of aid
The grant of aid to attend additional days of hearing at the AAT is T31.
Where criteria is met an extension of aid may also be available for the following:
Review of decisions
A decision to refuse legal aid for this type of matter may be appealed to the external review officer (refer to review of decisions).