Legal Aid NSW Policy Online
Document Type: Guideline
Chapter:4. Means Test


4.1. Introduction

These are the guidelines to the means test policy and are intended to be read with the means test policy. The guidelines are intended to provide guidance on how the means test policies are to be applied and set out certain requirements which need to be observed when determining and administering grants of legal aid.

The Legal Aid Commission of New South Wales is referred to as ‘Legal Aid NSW in these guidelines.




Date Last Published: 30/03/2009

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:

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:

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

4.4 Financially associated person

4.4.1 Household types


A Financially Associated Person (FAP) is a person who could reasonably be expected to contribute to the applicant’s legal costs, and therefore is included in the assessment of the applicant’s means in accordance with the Legal Aid NSW Means Test. See also: Means Test Policy 7.3.

The FAP Test is based on household types as described by the Australian Bureau of Statistics. To determine whether an applicant for legal aid has a Financially Associated Person, start by identifying what household type the applicant belongs to. There are presumed relationships of financial association in some household types. There can be a combination of different household types living under the same roof.

Category

Household TypeFinancially Associated Person
Couple family householdsCouple with no children

ü

Couple with dependent children

ü

Couple with non-dependent children

Couple ü

Non-dependent children û

One parent family households coupleOne parent with dependent children

ü

One parent with non-dependent children

û

Other householdsSingle person

û

Group household

û

Geographically separated couples or dependent children

ü

Related adults
Only if joint tenants in property

4.4.2 What is a dependent child?

The Financially Associated Person Test differentiates between dependent and non-dependent children. The parent or parents of a dependent child will be considered a Financially Associated Person for the purposes of the Means Test. The table below outlines the circumstances in which a child is considered dependent and has a Financially Associated Person.

See also: Means Test Policy 7.3.

AgeFull-time student?Living at home?Financially Associated Person
0-17YesYes

ü

No

ü

NoYes

ü

No

û

18-24YesYes

ü

No

û

NoYes

û

No

û

25 and overNot considered dependent under the FAP test regardless of circumstances

û


Date last published: 13/05/2019