Means Test A - Discretions Discretion can be exercised to: grant legal aid to applicants who exceed means test guidelines waive the contribution or vary the level of contribution from the amounts contained in the guidelines. Granting legal aid to applicants who exceed means test guidelines (a) Discretion available (i) There is discretion to grant legal aid to an applicant whose income and/or assets exceed the means test guidelines. Discretion can be exercised in these circumstances to ensure that the following factors, amongst others, are taken into account: the likely cost of proceedings the type of proceedings the overall financial position of the applicant situations where the applicant would suffer special hardship if legal aid was refused. (ii) There is discretion to grant legal aid to an applicant whose income and/or assets exceed the means test guidelines where there is not sufficient time for the applicant to raise the funds necessary to pay for legal assistance the applicant could not reasonably be expected to borrow against assets The applicant may later be required to make a full contribution. (b) Who can exercise discretion? Legal officers Grade III-IV and above have the discretion to grant legal aid to applicants whose income and/or assets exceed the Means Test guidelines. Granting legal aid to elderly applicants with excess home equity (a) Discretion available There is a discretion to disregard home equity in excess of the maximum ceiling when granting legal aid and calculating contribution on assets where the applicant - is aged over 60 years - is in receipt of an income tested pension or benefit - 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; exceptional circumstances exist. If this discretion is exercised the Commission will require the applicant to provide an equitable charge over the home. This charge is to secure a contribution up to the amount by which the applicant's equity in the home exceeds the maximum ceiling. (b) Who can exercise discretion? Legal officers Grade III-IV and above have the discretion to disregard home equity in excess of the maximum ceiling for elderly applicants. Waiving or varying contributions (a) Discretion available There is a discretion to waive the contribution or vary the level of contribution (i.e. to increase or decrease the level of contribution) on income and/or assets from the amount contained in the guidelines. (b) Discretion to increase contribution The discretion to increase the level of contribution should take account of, amongst other things: the likely cost of proceedings the type of proceedings the overall financial position of the person making the application for legal aid. (c) Discretion to waive or decrease contribution There is a discretion to waive or decrease the initial contribution in certain circumstances. This discretion may only be exercised: where the payment of the contribution would cause the legally assisted person special hardship, or where the payment of the contribution is impractical in the circumstances. Examples include where the legally assisted person is in custody, or is in a psychiatric institution, or is unable to manage his/her own affairs. (d) Who can exercise discretion? The officer determining the application for aid has the discretion to: waive contributions vary the level of contribution from that contained in the guidelines. subject to the exceptions in (e). (e) Exceptions - Criminal matters In Criminal Indictable matters, Indictable appeals and District Court appeals the discretion to: waive the contribution reduce it below the minimum contribution may be exercised by the following: Regional Office Senior Solicitors, legal officers Grade V and above the senior clerk, Indictable Clerical Support Unit The minimum contribution is $75 for pleas of guilty in criminal indictable matters indictable severity appeals District Court severity appeals. The minimum contribution is $150 for defended criminal indictable matters indictable all ground appeal matters District Court all ground appeal matters.

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The information contained on this page is not legal advice. If you have a legal problem you should talk to a lawyer before making a decision about what to do. The information on this page is written for people resident in, or affected by, the laws of New South Wales, Australia only.