Policies

7. Means Test

7.10. Discretions under the Means Test

Discretion can be exercised to

  • grant legal aid to an applicant when the Means Test provides that legal aid is only available in exceptional circumstances

  • waive the initial contribution or vary the level of contribution from the amounts specified in the Means Test. Initial contributions may only be waived or reduced in exceptional circumstances

7.10.1 Granting legal aid – income exceeds eligibility limit by up to 10%

The following table sets out the discretions which are available under the means test.

The 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. See Contributions Guideline at 5.2.

Discretion available

When is the discretion available

There is discretion to grant legal aid to an applicant

·whose net assessable income exceeds the income eligibility limit by up to 10%.

This discretion can be exercised taking into account the following factors

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

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

In duty solicitor matters this discretion may also be exercised by private legal practitioners authorised to grant legal aid under the Legal Aid Commission Act 1979.


7.10.2 Granting legal aid – income exceeds eligibility limit by over 10% and/or applicant does not satisfy the Means Test (including Supreme Court Bail)

This discretion deals with granting legal aid in the circumstances set out in the table below.

The 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. See Contributions Guideline at 5.2.

Discretion available

When is the discretion available

There is a discretion to grant legal aid to an applicant:

  • whose net assessable income exceeds the income eligibility limit by over 10%, and/or
  • whose application relates to a Supreme Court bail matter and whose net assessable assets exceed $1500, and/or
  • who does not satisfy the Means Test because the assessed contribution exceeds the allowable amount for the type of matter.

Legal aid may be granted where the determining officer is satisfied there are exceptional circumstances taking into account the following factors:

  • the likely cost of the proceedings
  • the type of proceedings
  • the overall financial position of the applicant
  • whether the applicant would suffer undue financial hardship if legal aid was refused

And where the applicant is outside the Means Test because the assets contribution exceeds the allowable amount for the type of matter, whether:

  • there is sufficient time for the applicant to raise the funds necessary to pay for legal assistance, and
  • the applicant could reasonably be expected to borrow against assets.

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

(Local Court criminal matters: This discretion only applies to committals, matters where a plea of not guilty has been entered and matters requiring expenditure. For other Local Court criminal matters see 7.10.3)


7.10.3 Discretion to grant legal aid in Local Court criminal matters

This discretion deals with granting legal aid in Local Court criminal matters (except committals, matters where a plea of not guilty has been entered and matters requiring expenditure) where the applicant's income exceeds eligibility limit by over 10% and/or net assessable assets exceed $1500.

Discretion available

When is the discretion available

There is a discretion to grant legal aid to an applicant

whose net assessable income exceeds the income eligibility limit by over 10%, and/or

whose net assessable assets exceed $1500.

Legal aid may be granted where the determining officer is satisfied there are exceptional circumstances taking into account the following factors:

  • the likely cost of the proceedings
  • the type of proceedings
  • the overall financial position of the applicant
  • whether the applicant would suffer undue financial hardship if legal aid was refused

And where the applicant is outside the Means Test because the assets contribution exceeds the allowable amount for the type of matter, whether:

  • there is sufficient time for the applicant to raise the funds necessary to pay for legal assistance, and
  • the applicant could reasonably be expected to borrow against assets.

This discretion may be exercised in Local Court criminal matters (except committals, matters where a plea of not guilty has been entered and matters requiring expenditure) if the applicant:

  • could not reasonably afford private legal representation, and
  • would have substantial difficulty representing himself or herself because of an apparent
  • psychiatric condition
  • developmental disability
  • intellectual disability, or
  • physical disability.

This discretion may be exercised by Legal Aid NSW officers authorised under the Delegation Instrument and private legal practitioners authorised to grant legal aid under the Legal Aid Commission Act 1979.

(For committals, matters where a plea of not guilty has been entered and matters requiring expenditure see 7.10.2 )

7.10.4 Discretion to grant legal aid where the applicant is affected by COVID-19

Discretion available

When is the discretion available

There is a discretion to grant legal aid to an applicant:
  • whose net assessable income exceeds the income eligibility limit by less than 10%, and/or
  • whose net assessable income exceeds the income eligibility limit by over 10%, and/or
  • who does not satisfy the Means Test because the assessed contribution exceeds the allowable amount for the type of matter.
This discretion can be exercised where the determining officer is satisfied the applicant’s financial situation is affected by COVID-19.
The discretion can be exercised, taking into account the following criteria:
  • the applicant’s income has changed as a result of the Coronavirus supplements
  • the applicant has lost their income and/or has had to close their business as a result of COVID-19
  • the applicant ‘is committed to’ higher living expenses as a result of their previous income and are using savings and/or superannuation to supplement those living expenses
  • the applicant has business overheads that need to be met despite the business generating little or no income.
Note: This discretion should be exercised in conjunction with discretion 7.10.1, 7.10.2 or 7.10.3

7.10.5 Granting legal aid to older applicants with excess home equity

The following table sets out the discretion available under the means test where it is an older applicant with excess equity in the home.

Discretion available

When is the discretion available?

There is a discretion to disregard home equity in excess of the maximum ceiling when granting legal aid and calculating the assets contribution.

Note: where legal aid is granted, the applicant must give a charge to secure the total costs of proceedings as a condition of the grant of legal aid.

The discretion may be exercised where

the applicant:

· is aged over 65 years or 55 years if an Aboriginal or Torres Strait Islander person, and

· is in receipt of an income tested pension or benefit, and

· has lived in his/her home for 5 years or more, unless

  • it has been necessary to buy alternative housing by reason of disability or ill health, or
  • it has been necessary to buy a new house as a consequence of elder abuse.

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


7.10.6 Waiving or varying contributions

The following table deals with the discretion concerning waiving or reducing a contribution amount.

Discretion to waive or vary contributions

Discretion available

There is a discretion to waive the income contribution or the assets contribution or vary the level of contribution (i.e. to increase or decrease the level of contribution) from the amount contained in the Means Test.

Discretion to increase

contribution

The discretion to increase the level of contribution should be exercised taking account of, amongst other things,

  • the likely cost of proceedings
  • the type of proceedings, and
  • the overall financial position of the person making the application for legal aid

Discretion to

waive, or

decrease

contribution

Contributions based on assets and income will only be waived or decreased where Legal Aid NSW is satisfied that there are exceptional circumstances.

See Contributions Chapter at 11.1 and Contributions Guideline at 5.2.

Who can exercise discretion?

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




Date Last Published: 08/04/2020
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