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3. Delegation Instrument

3.10. Implementing the Means Test under section 35

Item

Delegated Officer
Certification Determination

Implementing the Legal Aid NSW Means Test under s 35.

Duty Solicitor

In-house solicitor with the carriage of the matter

Determining Officer

subject to the following discretions

10.1

Exercising discretion in applying the Means Test to grant legal aid when, after calculating the income, the net assessable income of the applicant exceeds the current maximum threshold by up to 10%.

Discretion can be exercised taking into account, the following criteria

  • the likely costs of proceedings;
  • the overall financial position of the applicant;
  • whether the applicant would suffer hardship if legal aid was refused; or
  • whether there is sufficient time for the applicant to raise the funds necessary to pay for legal assistance.

For further information please see Means Test at 7.10.1 on Policy Online

Duty Solicitor

In-house solicitor with the carriage of the matter

Determining Officer

10.2

Exercising discretion in applying the Means Test to grant legal aid to applicants whose net assessable income exceeds the income eligibility threshold by over 10% and/or does not satisfy the means test.

Discretion can be exercised taking into account the following criteria:

  • the likely cost of the proceedings;
  • the type of proceedings;
  • the overall financial position of the applicant;
  • whether the applicant would suffer hardship if legal aid was refused;
  • whether there is sufficient time for the applicant to raise the funds necessary to pay for legal assistance; or
  • whether the applicant could reasonably be expected to borrow against assets.

*Discretion must only be exercised when the above criteria have been taken into consideration and the officer is satisfied that exceptional circumstances exist. Please see the Means Test for further guidance on exceptional circumstances.

Note: where an officer is exercising this discretion and the decision requires a reduction in the initial contribution amount, the officer should be aware that the amount by which the contribution is reduced must be in accordance with the officer’s delegation set out under clause 14 (s.36 contributions).

*Clients may later be required to make a full contribution.

For further information please see Means Test at 7.10.2 on Policy Online

Solicitor Grade IV

Manager Operations

Solicitor Grade IV Grants

10.3Exercising discretion in applying the Means Test to disregard, for elderly applicants, the home equity in excess of the maximum ceiling to grant legal aid and calculate a contribution on assets. Solicitor Grade IV
Manager Operations
Solicitor Grade IV
10.4
Exercising discretion to refuse legal aid to applicants whose income and assets fall within the Means Test.
The discretion can be exercised in the following situations:
  • Where the applicant is able to afford the cost of legal proceedings having regard to his/her general assets.
  • Where the applicant has substantial fixed assets or an interest in a business assets that
    • Could be realisable; and
    • Against which the applicant could secure a loan to cover the costs of legal proceedings.
  • Where the applicant’s life style or standard of living appears to be supported by means beyond those disclosed in the legal aid application.
Solicitor Grade IV
Manager Operations


Solicitor Grade IV Grants