Executive Summary

	The focus of our audit
	The role of the Legal Aid Commission of NSW (the Commission) is to make legal aid accessible to as many disadvantaged people as possible.
	The audit’s objective is to assess if legal aid is properly distributed to those who are entitled to it. To assess the Commission against the objective, the audit focused on two lines of inquiry: Is information about eligibility for legal aid clear and well communicated? Are decision-making processes sound?
	Opinion
	We found the Commission to be performing well in delivering legal aid services. It has maintained and expanded services despite funding pressures and increasing demand.
	Overall, we found the Commission’s practices of making people aware of legal issues and its services to be comprehensive. Communication is via brochures, telephone and internet. We also found its processing of applications for legal aid to be sound.
	The Commission presently conducts reviews of the services it provides to its key target groups. However, we believe it can further improve how it understands and reports the delivery of its services. We suggest that the Commission undertake periodic agency-wide access and equity reviews to better understand its existing services and unmet demand across its target areas.
	An important pressure on the Commission’s decision making processes has been funding. Despite funding constraints, the Commission’s civil law services are more wide-ranging than other commissions in Australia. However they have not increased to the same extent as the Commission’s criminal and family law services over the last ten years.
	A recent easing in funding pressures has meant that the Commission was able to relax its means test for legal representation in 2005 for the first time in ten years. The income tests have now been increased and have caught up. However, asset tests are at levels lower than Centrelink full benefit thresholds and those in some other legal aid commissions. As the population ages this is likely to affect those, especially in Sydney, who are income poor but relatively asset rich.
	Further improvements in the Commission’s decision making will be dependent on the development and implementation of two new information systems by the Commission – a legal aid grants management system and a case management system. These new systems will allow the Commission to better capture and report on cost and productivity. This will support better resource management and benchmarking.
	Recommendations
	The Commission should:
make information clear about legal aid	§ consider extending the range of its toolkits and posters (page 18) § consider improving the design of its internet site (page 18)
better understand target groups and demand for services	§ consider conducting periodic whole-of-Commission access and equity reviews of its existing services (pages 22) § seek funds for research into unmet demand for existing services (page 24) § make a statement on addressing areas of unmet demand identified in the 2003 Civil Law Review Report (page 26) § extend its reporting to include the number of services delivered against targets (page 23)
be more accountable for entitlement tests and resources	§ benchmark its means test against national levels (page 31) § consider measuring and reporting gaps between available resources and demand for its services (page 34) § utilise new systems to better cost and benchmark activities (page 35)
have more consistent and better documented decisions	§ utilise new systems to better monitor applications and refusals (pages 37 and 39) § expand client surveys to its representation services (page 37) § consider engaging peers to review its operations (page 37)
better manage case times	§ measure and report the time taken to process cases (page 40)
enhance appeal processes	§ consider the option of review of appeals by a member of a review panel rather than an appeal committee (page 42)   § consider reporting the time taken to assess appeals (page 42).
	Findings
Chapter 2- Is information about eligibility for legal aid clear and well communicated?	The Commission provides extensive information about legal issues and its services. It is communicated in various ways – brochures, telephone, internet, face to face, advertisements, and links with other service providers and justice sector agencies – and is comprehensive.
	The Commission’s brochures cover a range of relevant topics and provide essential information about legal issues and the availability of legal aid. There is room for improvement in toolkits to better support legal advice.
	The LawAccess phone line is an effective gateway to legal aid services.
	The Commission’s internet site is information rich and includes a means test indicator. It could be more user friendly for members of the public.
	The Commission has initiated successful reforms to make its services more accessible. One of these initiatives is the Co-operative Legal Services Delivery Model being implemented in regions.
	The Commission targets particular groups to meet their specific needs. In recent years the Commission has conducted comprehensive reviews of five of its service delivery programs. For example, a review into civil law services has resulted in the Commission taking actions to service unmet demand that was identified. But at this point the Commission has not conducted an all embracing access and equity review across all programs at once to gain a more complete picture of access and equity issues.
Chapter 3 - Are decision making processes sound?	Sound legal aid decision processes rely on: policies deciding eligibility; systems guiding the application of policies; funding to implement the policies; monitoring of the timeliness and costs of activities; rights of appeal; and reporting on performance.
	People in NSW are able to receive legal aid in a greater range of situations than in other states and territories. However the eligibility test thresholds for legal aid in NSW are still below those in some other commissions. But they are catching up. The means test for legal aid was frozen between 1995 and 2005 but was increased in 2005 and 2006. The income tests in NSW are now comparable with Centrelink’s full benefit tests. But a pensioner on a full Centrelink pension may not pass the Commission’s stricter asset tests.
	The Commission’s policies are shaped by balancing service demand and funding provided by the NSW and Commonwealth governments. Much of this demand results from new government policies. An example is the appointment of more Department of Community Service care and protection officers resulting in more children’s cases for the Commission. However, the Commission does not report the gap between demand for its services and its funding levels. This has lessened public scrutiny of the impact of the Commission’s policy decisions such as setting eligibility tests as described above.
	The Commission continues to work towards improving its systems. But to this point it is still working on improving its costing system, despite this being a corporate priority for some years. This limits its reporting on whether it provides value for money.
	The Commission has well documented and detailed entitlement tests. The application of the tests is reviewed in internal file reviews. The reviews report high levels of compliance with policies and procedures.
	At present the recording systems for applications and level of documentation are acceptable but limited. The rates and reasons for refusals of legal aid are monitored as well as the current systems allow. New systems are under development and will help with recording of decisions and review of compliance.
	The Commission reports to its Board processing times for applications. It records times for cases from commencement to completion, but does not report this.
	Measuring case file loads is currently the Commission’s favoured way of managing lawyers with large work loads. Improved time and cost recording would provide additional measures to manage, monitor and report performance.
	The right of appeal and the processes involved are made clear to legal aid clients when an application is rejected. The assessment of appeals is made by a committee. We note that in other commissions a member of an appeal panel conducts reviews. We consider this approach has merit and is considered more efficient.

Response from Legal Aid Commission of New South Wales

The Legal Aid Commission of New South Wales (the Commission) thanks the Audit Office for the opportunity to provide comment on this report.

I am pleased to note that the report is largely positive; finding that overall the Commission is performing well in delivering legal aid services. The Audit Office’s recommendations for improvements in the Commission’s services, planning and reporting will be a useful input into the Commission’s ongoing organisational improvement process.

In a number of areas the report comments on the level of funding provided to the Commission by its key funders; being the NSW State Government, the Commonwealth Government and the Public Purpose Fund. It is in this context that the Commission must acknowledge the support it has received from both the NSW State Government and the Public Purpose Fund since major changes were made by the Commonwealth Government to Commonwealth/State funding arrangements for legal aid nationally at the end of the 1996-97 financial year. Recurrent funding from the NSW State Government has increased by 325% from $26.812 million in 1996-97 to $87.125 million in 2006-07. Likewise, funding from the Public Purpose Fund has increased by 293% from $11.264 million in 1996-97 to $33.048 million in 2006-07. It is only with the support of these funders that the Commission has been able to maintain and in some cases even increase the level of service delivery it provides to the community.

The report makes reference to the complex issue of understanding and measuring unmet legal need amongst socially and economically disadvantaged members of the community. While the Commission acknowledges that in an ideal world such information would be available, nowhere in the world has any government or legal aid provider been able to clearly identify unmet legal aid need on a regular basis. That is not to say that services should not be targeted to those groups identified through the best available evidence and research to be in need of legal aid services. The Commission does this by conducting ongoing reviews of its service delivery programs (as mentioned in the Report) using information drawn from a number of sources; such as the Australian Bureau of Statistics, the Law and Justice Foundation, the Bureau of Crime Statistics and Research, the courts, the Attorney General’s Department, university researchers and the Commission’s own statistics. In addition the Commission’s Board has recently approved that both the Elderly and the Homeless are to become additional priority target groups for our range of legal services.

Comment is made in the report about the Commission’s Civil Law program. The Commission’s Board has targeted the Civil Law program at those areas that particularly relate to the needs of socially and economically disadvantaged people such as housing, social security, immigration, veteran’s entitlements, consumer law, mental health advocacy and human rights. The Commission’s Civil Law program is by far the largest and broadest amongst all Australian legal aid commissions, with most providing minimal or no civil law services. That the Commission has been able to maintain such services during times of record demand for criminal and family law services is an achievement of which I am extremely proud. It is acknowledged in the report that the Commission has recently been able to extend its Civil Law services with the appointment of an additional 10 solicitors across the State.

The benchmarking of legal aid services against other States and Territories is discussed in the report. While this would seem a simple exercise, it must be recognised that the legal system in each State and Territory is different. Furthermore, legislation, Commission policy for the granting of legal aid and the structure of each Commission is different. These differences add to the complexity of the benchmarking exercise, and make it difficult to be truly comparable. Having said this, the Commission accepts the need to find suitable benchmarks for its services.

It is recommended in the report that the Commission report on the time taken to process cases where legal representation is provided; being the time from receipt of an application from a prospective client until the conclusion of the case in court. The Commission notes that the time taken to finalise a case is not within its control, with other entities such as the courts, NSW Police, the Office of the Director of Public Prosecution and indeed the client being responsible for key milestones during the progress of a case. This measure does not therefore provide insight into the Commission’s efficiency. As is already the case in some courts, such a measure is more appropriately captured and reported by the court, where judicial officers do have the ability to influence the conduct of the case before them.

The report recommends that the Commission consider implementing a review panel where a single member hears appeals by applicants for legal aid against the refusal to grant them legal aid, rather than the existing Committee structure. It should be noted that the Legal Aid Review Committee is constituted pursuant to the Legal Aid Commission Act 1979, and any changes to this structure are within the purview of Parliament and not the Commission. However, it is the Commission’s view that a single member appeal process is less robust than the current process, and would result in a less consistent application of the Commission’s policies; but a review of the administration of the appeals process is currently underway.

I would like to take this opportunity to thank the Audit Office and its staff for the professional, cooperative and collaborative manner in which this audit was conducted.

(signed)

Bill Grant

Chief Executive Officer

Dated: 23 November 2006