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Guidelines

4. Means Test

4.3. Granting aid when net assessable income is above the income limit or applicant does not satisfy Means Test

4.3.1 When income is less than 10% above the income limit

When exercising discretion to grant legal aid to legal aid applicants whose net assessable income is less than 10% above the income threshold, Legal Aid NSW officers who have the authority under the Delegation Instrument need to take into account the following criteria when considering whether there are exception circumstances:

  • the likely costs of proceeds
  • the type of proceedings
  • the overall financial position of the applicant
  • situations where the applicant would suffer hardship if legal aid was refused
  • that there is not sufficient time for the applicant to raise the funds necessary to pay for legal assistance.

4.3.2 When income is more than 10% above the income limit and/or applicant does not meet means test

When exercising discretion to grant legal aid to a legal aid applicant whose net assessable income is more than 10% above the income limit set out in the policy and/or the applicant does not meet the Means Test, Legal Aid NSW officers who have the authority under the Delegation Instrument need to take into account the following criteria when considering whether exceptional circumstances exist.

Criteria that may be considered include, but are not limited to the following:

  • the type of proceedings
  • the likely length of proceedings
  • the likely cost of proceedings
  • the potential penalty involved in criminal matters
  • the complexity of the criminal matter – the number of witnesses likely to appear, whether expert witnesses will be involved, whether it is a highly technical case
  • the detriment suffered if the applicant is refused legal aid
  • the applicants' ability to borrow money to pay for legal services
  • the applicant's personal circumstances including level of education and age
  • does the applicant live in a remote area and unable to access legal representation
  • how much has been spent to date on the proceedings by the applicant – has the applicant exhausted all available funds as a result of the proceedings
  • the financial circumstances of the applicant - the level of debt, the ability to repay the debt
  • whether it is a class action
  • whether it is in the public interest
  • whether it is a test case.

Legal Aid NSW officers authorised under the Delegation Instrument can exercise this discretion.

Note: This discretion applies to the decision to grant aid where the applicant does not satisfy the means test. In most cases, the applicant will be required to pay a contribution based on their income. There is no discretion to waive or decrease a contribution based on income. See Contributions Guideline at 5.2

Date Last Published: 30/01/2017