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S32 Step By Step Guide

Arranging and funding an assessment

If you cannot obtain sufficient existing evidence and your application may fail without it, an application should be made for a grant from Legal Aid NSW to cover the cost of getting an assessment from a psychologist who has experience in assessing intellectual disability. Aboriginal Legal Service lawyers should approach their supervising lawyer for approval for funds for reports when necessary.

Applying for a Grant of Legal Aid

The rules at Legal Aid NSW require that every Legal Aid application lodged be offered in-house first unless there are exceptional circumstances. Intellectual disability may constitute exceptional circumstances that will allow practitioners to maintain carriage of a matter. Continuity of representation is particularly important for a client with intellectual disability and will reduce adjournments, confusion and distress for the client.

Further reading - IDRS case study Continuity - Domingo

If you are applying for a grant of aid to represent a person with an intellectual disability, then the following points may be raised in support of your grant application:

  • advise of your client's intellectual disability
  • that you intend to apply for a s32
  • the importance of continuity
  • any history with or knowledge of your client that make you best placed to act for the client
  • any communication difficulties your client faces

Funding of Assessments

Legal Aid NSW will fund assessments for defendants in the Local Court in some circumstances. Make sure you outline to Legal Aid NSW all the relevant circumstances.

    In section 32 matters this would include:
  • the reasons why you suspect your client has an intellectual disability, including any available information (eg past reports, information from family, the lawyer's own observations)
  • the purpose of the report ie proof of developmental disability to satisfy the jurisdictional question and/or for an outline of appropriate supports to reduce the risk of re-offending)
  • why funding for the report is required: no or inadequate existing reports, the type of offence, whether there are there reasonable prospects of a support plan being able to be devised to reduce the risk of re-offending and persuade the magistrate to exercise their discretion to apply the section; whether the magistrate has rejected an older report and the application will fail on the jurisdictional question if no new report is forthcoming)
  • who will do the report (for example, a treating practitioner or another expert.) Consider requesting a review of the decision if your application for funding of an assessment is unsuccessful and is crucial to your client's matter

Extra Work Items

Legal Aid NSW acknowledges that sometimes extra work will be required on the part of the practitioner who is preparing a matter for a client with an intellectual disability. Legal Aid NSW will consider granting extra work items, in particular extra conferences and preparation time, if such items are requested with an explanation as to why they are necessary.

Obtaining evidence of intellectual disabilitySelecting a psychologist

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