9. 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, such as:
  • when the applicant’s net assessable income is greater than $450 per week,
  • If the assets contribution and/or the income contribution exceeds the allowable amount for the type of matter 
• grant legal aid to an older applicant with excess home equity.
• 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 (see Contributions guideline 6.2).

9.1  Income exceeds the maximum threshold by up to 10%

Where there are exceptional circumstances, there is discretion to grant legal aid to an applicant whose net assessable income exceeds the maximum threshold by up to 10%

In determining whether there are exceptional circumstances, the delegated officer must consider the following factors:

Once the delegated officer has determined there are exceptional circumstances, legal aid may be granted. The applicant must pay an income contribution in all matters.

Legal Aid NSW officers authorised under the Delegation Instrument clause 14 Implementing the Legal Aid NSW Means Test under s 35 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.

9.2  Income exceeds the maximum threshold by over 10%

Where there are exceptional circumstances, there is discretion to grant legal aid to an applicant whose net assessable income exceeds the maximum threshold by over 10%.

In determining whether there are exceptional circumstances, the delegated officer must consider the following factors:

See Means Test guideline 1 for guidance on factors to be taken into consideration when exercising this discretion.

Once the delegated officer has determined there are exceptional circumstances, legal aid may be granted. The applicant must pay an income contribution in all matters.

Legal Aid NSW officers authorised under the Delegation Instrument clause 14.2 may exercise this discretion.

If the income contribution exceeds the allowable amount for the type of matter, see Means Test 9.3 below.

9.3  Contribution exceeds the allowable amount for the type of matter (cost of proceedings)

Where there are exceptional circumstances, there is discretion to grant legal aid to an applicant whose calculated contribution (on income and/or assets) exceeds the allowable amount for the type of matter (see Means Test guideline 5).

In determining whether there are exceptional circumstances, the delegated officer must consider the following factors:

See Means Test guideline 1 for guidance on factors to be taken into consideration when exercising this discretion.

Once the delegated officer has determined there are exceptional circumstances, legal aid may be granted. The applicant must pay an income contribution in all matters.

Legal Aid NSW officers authorised under the Delegation Instrument clause 14.3 may exercise this discretion.

9.4  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.

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

9.5  Waiving or varying contributions

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

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