Introduction
Victoria Legal Aid (VLA) may make a grant of legal assistance to a person under our special circumstances guideline if:
- The matter is one where VLA ordinarily grants legal assistance under an existing guideline, but the circumstances do not satisfy all of the criteria under that guideline.
- The existing VLA guideline does not exclude the operation of special circumstances.
- The person’s circumstances satisfy either
- the Commonwealth’s special circumstances – if the legal matter is a Commonwealth matter
- the State’s special circumstances – if the legal matter is a state matter.
Applications under special circumstances are subject to the means test and any merits or reasonableness test under the relevant guideline.
If the matter does not meet these criteria, please see the public interest and strategic litigation guideline.
State special circumstances
VLA may make a grant of legal assistance in a state matter if the person meets one of the following conditions:
- is under 18 years old
- has a reading or writing difficulty
- has an intellectual disability within the meaning of the Disability Act 2006 (Vic)
- has a serious mental health issue and is receiving services from a designated mental health service under the Mental Health Act 2014 (Vic).
Special circumstances cannot be applied to traffic matters heard in the Magistrates' Court.
Read the documentary requirements to support an application for a grant of legal assistance under the State special circumstances guideline.
Commonwealth special circumstances
VLA may make a grant of legal assistance in a Commonwealth matter if it concerns any of the following:
- In a Commonwealth criminal law matter, the person meets one of the State special circumstances.
- In a non-urgent Commonwealth family law matter, one of the following applies:
- an allegation of family violence has been made and the person is either a victim or an affected family member in the matter
- there is a likelihood of family violence
- concerns about the safety, welfare and psychological wellbeing of a child have been identified and need further investigation
- the person has a reading or writing difficulty
- the person has an intellectual or physical disability or a serious mental health issue
- it is difficult for the person to get legal assistance because they live in a remote location
- the person is an Aboriginal and/or Torres Strait Islander child/children.
Read the documentary requirements for an application for a grant of legal assistance under the Commonwealth special circumstances guideline.
See also Commonwealth civil law guideline 1.2 for assistance for disadvantaged clients in some types of Commonwealth civil law matters.
Supporting information and definitions
This section applies to both State and Commonwealth matters.
Documentary requirements
If a person makes an application for legal assistance under the State or Commonwealth special circumstances guideline, they must provide the following to VLA:
- Information in writing about the nature and extent of the special circumstances, including how the special circumstances impact the person’s ability to represent themselves.
- Evidence as suggested below to support their application.
- Any extra information to support the special circumstances application.
Reading or writing difficulty
Special circumstances may apply if the person experiences challenges with reading or writing, and these challenges cannot be resolved by using an interpreter or translator service.
Evidence of reading or writing difficulty may include the following:
- Evidence that the person cannot read or write, such as statutory declaration from a professional who has personal knowledge that the person cannot read or write.
- Any other document from support services that can confirm that the person otherwise faces significant challenges with reading and writing, which impacts their ability to self-represent and cannot be resolved by using an interpreter or translator service.
Intellectual disability
Intellectual disability, as defined in the Disability Act 2006 (Vic) for a person over five years old, means both the existence of:
- a significant sub-average general intellectual functioning
- significant deficits in adaptive behaviour.
These must be diagnosed before the age of 18.
Intellectual disability does not apply to a person with cognitive disabilities that have developed after childhood, such as an acquired brain injury or age-related cognitive degeneration.
VLA requires evidence to support an application for a grant of legal assistance.
Evidence of intellectual disability may include the following:
- Evidence that the person is receiving disability services from a registered disability services provider based on their intellectual disability
- Evidence that the Secretary to the Department of Families, Fairness and Housing (DFFH) has made a decision that a person has an intellectual disability
- Evidence that a person is a NDIS (National Disability Insurance Scheme) participant or receives services under the NDIS for their intellectual disability
- Evidence of the nature of the disability, provided by the registered disability services provider, NDIS or Secretary to the DFFH.
A letter from a person’s General Medical Practitioner alone is not sufficient evidence of a person’s intellectual disability.
Serious mental health issue
A person is considered to have a serious mental health issue if the person is receiving mental health services from a ‘designated mental health service’ within the meaning of Mental Health Act . See the Victorian Government's Designated mental health .
Evidence of a serious mental health issue may include the following:
- Evidence from a designated mental health service confirming that the person is receiving services from that mental health service.
Reviewed 31 December 2022