These notes provide guidance on how the special circumstances guideline in the Victoria Legal Aid (VLA) Handbook for Lawyers (the Handbook) are interpreted and applied. They provide commentary and examples on:
- Eligibility criteria: an explanation of what is required to meet eligibility criteria guideline requirements.
- Documentary requirements: the documents required to be retained on the file (or uploaded to ATLAS for guidelines where VLA assesses eligibility) as evidence of compliance with the guidelines.
The notes form part of the Handbook and are intended to be read with the special circumstances guideline. Lawyers applying for grants of assistance are required to apply both the guidelines and these notes. Where there is any inconsistency between the notes and the guidelines, the guidelines will prevail.
We recommend you first refer to the notes before contacting us with a query. If the notes do not clarify the issue, or if you have a query which relates to a particular matter, please contact Grants and Quality Assurance on (03) 9269 0600 or by email: Grants@vla.vic.gov.au.
Changes made to the special circumstances guideline in 2023
In January 2023, VLA published a revised special circumstances guideline. Changes were made to the structure and language of the guideline to make it clearer, more consistent and easier to apply.
This revision did not expand or restrict eligibility criteria. The special circumstances guideline now:
- clarifies that special circumstances are only available where the matter falls within any of VLA’s guidelines but does not satisfy all the requirements of that guideline
- uses the expression ‘reading or writing difficulty’ instead of ‘language or literacy problem’
- uses the term ‘serious mental health issue’ instead of ‘psychiatric disability’
- provides the meaning of ‘reading or writing difficulty’ and ‘serious mental health issue’
- uses an updated definition of ‘intellectual disability’ that is consistent with the Disability Act 2006 (Vic)
- refers to the Mental Health Act 2014 (Vic) instead of the repealed Mental Health Act 1986 (Vic).
The meaning of ‘reading or writing difficulty’ has been provided in the special circumstances guideline. The reading or writing difficulty must be one which cannot be resolved by using an interpreter or translator service. For example, an interpreter may not be able to help a person who has dyslexia or age-related cognitive degeneration leading to a literacy problem.
‘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.
This must be diagnosed before the age of 18 and must not have developed after childhood, such as an acquired brain injury or age-related cognitive degeneration.
Under the guideline, 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. DFFH provides a register of disability services providers funded by DFFH that can be consulted when considering evidence from a registered disability services provider. More information on eligibility status can be found at the NDIS provider finder.
The revised special circumstances guideline specifies that a person who has a ‘serious mental health issue’ and is receiving services from a designated mental health service under the Mental Health Act 2014 (Vic) may meet the conditions of this guideline. It is helpful to understand what is meant by ‘is receiving services’ and what constitutes ‘a designated mental health service’.
The Mental Health Act 2014 (Vic) (‘the Act’) defines ‘mental illness’ as a medical condition that is characterised by a significant disturbance of thought, mood, perception or memory. It then expressly excludes certain kinds of conduct from being considered a mental illness (see s. 4(2) of the Act). The exclusions specifically allude to the person being previously treated for mental illness (paragraph (o)). Under that definition, persons who have previously received treatment for mental illness cannot be considered to presently have a mental illness for that reason alone.
While the guideline uses the term ‘serious mental health issue’ instead of ‘mental illness’, its intended meaning is the same. Due to the definition of ‘mental illness’ and because the guideline uses the expression ‘is receiving’, the treatment received by an applicant should not be too distant in the past. In order for the treatment to be considered as being currently received, the person should have received services from a designated mental health service within the past three months from the date of applying for the grant.
The guideline provides that evidence for serious mental health issues includes evidence from a designated mental health service confirming that the person is receiving services from that mental health service. A link to a list of designated mental health services has been provided in the guideline. Any entity providing mental health services which is working under or as part of or on behalf of the designated mental health service is by association a designated mental health service.
For example, AWH Mental Health Services are a constituent unit of Albury Wodonga Health and documents from them are acceptable evidence coming from a designated mental health service.
Another example is Peninsula Health which comprises of the following hospitals and services:
- Frankston Hospital
- Frankston Public Surgical Centre
- Rosebud Hospital
- The Mornington Centre
- Golf Links Road Rehabilitation Centre
- Community Health Services
- Mental Health Services
- Carinya Residential Aged Care Unit.
Where an entity is providing such evidence, consideration should be given to whether the entity working as part of or on behalf of the designated mental health service is actually providing a mental health service. For example, not all of the above entities that form part of Peninsula Health are engaged in providing mental health services. A letter from Frankston Public Surgical Centre, which specialises in elective surgeries and endoscopies, may not be accepted as evidence of receiving mental health services from a designated mental health service unless they have a mental health practitioner employed with them who is providing such evidence.
The qualifications of a practitioner can be verified from the Australian Health Practitioner Regulation Agency (AHPRA). It will usually verify the qualifications of the signing physician and will confirm if they specialise in mental health treatment i.e. psychiatrist. This may be useful if you have an instance where a medical practitioner is working from a private practice and not a dedicated mental health service facility.
Additional information requirements
If the legal matter is outside the Commonwealth or State guidelines, but the person or their lawyer (if any) considers that either the person applying or the matter falls into any of either the Commonwealth’s special circumstances or the State’s special circumstances (whichever may be relevant), then the person or their lawyer should attach to the person’s application form:
- a memorandum or letter detailing the nature and extent of the special circumstances
- the effect of the special circumstances on the ability of the person seeking assistance to adequately represent themselves
- any additional information that supports the argument that special circumstances apply.
Updated