Terminating aid scenarios
Scenario – means test where change of financial circumstances
Joe has a mortgage matter in the NSW Supreme Court. He has been unable to keep up with repayments and the bank has sought foreclosure. He was provided with a grant of legal aid three months ago. Yesterday Joe called Legal Aid NSW and said "my lotto syndicate at work got up – I won $5,000! This won't affect my grant of legal aid will it?"
Suggested action
Unless there are exceptional circumstances, Joe would no longer eligible for legal aid as he would fail the means test. However, given the estimated costs of the proceedings, it may be appropriate to exercise discretion and increase Joe's contribution rather than terminate his grant of aid.
Scenario – complaint by other party
Astrid has a grant of aid for family law proceedings. She is seeking 'live with' orders for her two children, Elvis and Gloria. In her application for aid Astrid claimed her entire assets were half of the matrimonial home and $1000 in her bank account, and included a copy of her bank statement to this effect. She claimed she had no financially associated person (FAP).
You receive a confidential complaint letter from Edgar, the father of Astrid's children. He writes: "it's a joke that Astrid is receiving legal aid while I'm paying for my solicitor. Her new boyfriend is loaded and he's always buying the kids the latest electronic gadgets – last week Elvis came over with a new Ipad. When I asked him where he got it, he said it was a gift from mum. I also know she received $20,000 when her grandfather died last year and she keeps it in the safe at home. I bet she never told you that!"
Suggested action
Requisition Astrid for verification in relation to any financially associated person, and additional assets not disclosed in her original application. If she does not adequately respond within a reasonable timeframe or her response indicates she fails the means test, the grant of aid should be terminated.
Scenario – means test where inconsistent lifestyle becomes apparent
Antonia was charged with assaulting an officer. She has a grant of aid for the proceedings in the Local Court. You are her inhouse lawyer. You notice that Antonia travels to and from your office in a Mercedes Benz convertible, wears expensive-looking clothing and jewellery, and always carries a designer handbag.
Suggested action
Request Antonia to provide updated verification of her means, and inform her that the grant of aid may be terminated if she fails to comply or she no longer satisfies the means test. If she does not provide verification, or her documents demonstrate that she does not meet the means test, the grant of aid should be terminated or her contribution increased as appropriate.