The Means Test is not applied to the following:

Criminal

• criminal law advice and minor assistance services;
• first appearance bail applications in Local Court criminal duty matters;
• children in the Children's Court;
• children in the District Court and the Supreme Court;
• Drug Court matters;
• some Prisoners' legal matters.

Family

• family law advice and minor assistance services;
• family law duty lawyer matters;
• care and protection duty lawyer matters;
• children in the Children's Court;
• children in appeals to the District Court in care matters;
• children in the Administrative and Equal Opportunity Division of NCAT and appeals in the Supreme Court;
• children where an order for independent representation is made under s 68L of the Family Law Act 1975 (Cth);
• parent or a person with parental responsibility in primary care and protection proceedings.

Civil

• civil law advice and minor assistance services;
• civil law duty lawyer matters;
• Mental Health and Guardianship matters for the subject of the proceedings;
• War Veterans and their dependants for proceedings in the Administrative Appeals Tribunal under Part II of the Veterans' Entitlement Act 1986 (Cth) and the Military Rehabilitation and Compensation Act 1988 (Cth), that relate to warlike or non-warlike service. 

1.4.2.1 - Whose means are considered when applying the Means Test?

The Means Test considers the ability of the applicant to meet their legal costs. It is applied to the income and assets of:

• the applicant for legal aid, and
• any Financially Associated Person.

1.4.2.2 - What is a Financially Associated Person?

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 s 35(2)(b) of the Legal Aid Commission Act 1979 No 78 (NSW).

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 can be a combination of different household types living under the same roof. The three main household categories are:

• Couple family households;
• One parent family households;
• Other households.

Note: Where the applicant for legal aid is homeless, they have no Financially Associated Person for the purposes of the Means Test.

Note: Usually resident means the person spends around 50% of their time in that household.

See also: Means Test guideline 1.2

1.4.2.3 - Couple family households

A couple household is a household based on two persons who are in a registered or de facto relationship and who are usually resident in the same household. The couple family household may or may not include any number of dependent children and non-dependent children. Some relationships in couple family households are considered FAPs for the purposes of the Means Test.

Couple with no children household

An adult couple who usually reside in the same household. In these circumstances the couple are deemed to be financially related and are Financially Associated Persons for the purpose of the Means Test.

Couple with dependent children household

An adult couple with any number of dependent children who usually reside in the same household. A dependant child is any child 17 years old or under, or full-time students up to 24 years old.  In these circumstances the couple and the children are all deemed to be financially related: the adult couple are Financially Associated Persons for each other and are the child/ren’s Financially Associated Persons for the purpose of the Means Test.

Couple with non-dependent children household

An adult couple with any number of non-dependent children living in the same household. A non-dependant child is 18 years and over, or 25 years and over if they are full-time students. They could be receiving a Centrelink Income or be working. For the purpose of the Means Test, this household is treated as at least two separate households.

The parents are treated as one household type [Couple with no children household] and are deemed to be Financially Associated Persons for the purpose of the Means Test.

Each non-dependant child is treated as a single person household for the purposes of the Means Test.

See also: Means Test guideline 1.2

1.4.2.4 - One parent family household

A person who has no spouse or partner usually resident in the household but who forms a parent-child relationship with at least one child usually resident in the household.

One parent with dependent children household

This is a household where one adult is living with any number of dependent children. A dependant child includes a child 17 years or under, or full-time students up to 24 years of age. All members of this household are deemed to be financially related and the adult parent is the child/ren’s Financially Associated Person for the purpose of the Means Test.

One parent with non-dependent children household

This is a household where one adult is living with non-dependent adult children who could be in receipt of Centrelink Income or be working. For the purpose of the Means Test, this household is treated as at least two separate households.

The parent is treated as a single person household for the purpose of the Means Test. The parent does not have a Financially Associated Person.

Each non-dependant child is treated as a single person household for the purposes of the Means Test. A non-dependent child does not have a Financially Associated Person.

See also Means Test guideline 1.2

1.4.2.5 - Other household types

This may include a single person household, group household, related adult household or couple household (with or without dependent children) who pool resources but are geographically separated.

Single person household

A person who has no spouse, partner or children usually resident in the household.  For the purpose of the Means Test an applicant who is deemed to be a single person household does not have a Financially Associated Person.

Group household

A group household is a household consisting of two or more people where all persons are aged 15 years or over. There are no reported couple relationships or parent-child relationships in these households.

Each person in the group household type is a single person household for the purpose of the Means Test.

Related adult household

A household of two or more related adults, such as adult siblings, will be treated as single person households unless there is evidence they pool all their resources: for example, they are joint tenants in the property. In this circumstance, adult siblings will be treated as Financially Associated Persons for the purposes of the Means Test.

Geographical separated households

An adult couple who are in a registered or de facto relationship but who are geographically separated because, for example, one of the adult couple is in custody or is in residential care at the time of the application for legal aid. This household type also includes people who spend extended periods away from home due to fly-in fly-out working arrangements. 

The adult couple will be deemed financially related and are Financially Associated Person for the purpose of the Means Test.

Any dependant child in this household they will be deemed financially related and the adult couple is the child/ren’s Financially Associated Person for the purpose of the Means Test.

A dependant child who is geographically separated because, for example, they are at boarding school, will be deemed financially related and the adult parent/s are the child’s Financially Associated Persons for the purpose of the Means Test. This could arise in an adult couple with dependent children household or one parent with dependent children household.

See also: Means Test guideline 1.2

1.4.2.6 - Exemptions: when a FAP is not included in the Means Test

The Means Test is not applied to the income and assets of a Financially Associated Person where:

• it is considered that the income and/or assets of the financially associated person are not available for the use or benefit of the applicant;
• the applicant does not have access to that income or those assets;
• the financially associated person has a contrary interest in the matter for which legal aid is sought;
• disclosure of the legal problem may damage the relationship between the applicant and the financially associated person;
• if the financially associated person is the spouse or de facto spouse of the applicant, the applicant and financially associated person are separated, or
• there are other special reasons why the means of the financially associated person should be disregarded.

1.4.3.1 - Means Test structure

In order to satisfy the means test the applicant must satisfy three sub-tests.

• income test;
• assets test;
• lifestyle test.

An income contribution is assessed on the applicant's income. An assets contribution is assessed on the applicant's assets. If the income contribution and the assets contribution together exceed the allowable amount for the type of matter, the applicant does not satisfy the Means Test, unless there are exceptional circumstances.

Note: Any reference to the means of the applicant includes, where appropriate, the means of any financially associated persons.

1.4.4.1 - Recipients of maximum rate Centrelink payments

An applicant receiving a Centrelink income support payment at the maximum rate satisfies the income test. See Means Test 1.4.4.7 Income Test for Centrelink recipients for more details.

1.4.4.2 - All other applicants

The following table is the income test which applies to all other applicants.

NOTE 1: Eligible applicants must pay an income contribution in all matters except those listed in Means Test 1.4.1 Matters exempt from initial contributions. See Means Test 1.4.7 Income contributions, on how initial contributions are calculated.

NOTE 2: All applicants must also satisfy the Assets Test and Liftstyle Test. See Means Test 1.4.5 Assets Test and Means Test 1.4.6 Lifestyle Test.

1.4.4.3 - How to calculate net assessable income

The Income Test is applied to the applicant's net assessable income.

Net assessable income is:

• the applicant's gross assessable income, less
• allowable deductions.

1.4.4.4 - Gross assessable income - what is included?

Income from all sources is included in gross assessable income, except:

• Centrelink Carer Allowance, and
• NDIS amounts.

Gross assessable income includes, but is not limited to, the following:

• pensions, benefits and allowances (including Family Tax Benefit and Rent Assistance);
• income from wage/salary, including overtime;
• income from self-employment;
• periodic receipts, including payments from investments, dividends, interest earned and payment of debts owed to the applicant;
• board or rent received;
• spousal maintenance and child support received;
• workers' compensation or other compensation payments, and
• superannuation payments;
• Commonwealth Government Parental Leave Pay and employer funded parental leave payments.

NOTE: Income is calculated net of business overheads/expenses reasonably incurred in or for the purposes of gaining or producing that income. Such overheads/expenses will not be considered reasonably incurred merely because they have been, or are likely to be allowed or allowable deductions by the Commissioner of Taxation for the purposes of the Income Tax Assessment Act 1997 (Cth).

1.4.4.5 - Allowable deductions

The following table sets out the allowable deductions in the Income Test.

1.4.4.6 - Information about allowable deductions

(a) General information

Except for financially associated person allowance and dependant allowance, applicants may only deduct the amount they actually pay for each allowable deduction, up to the maximum set out above.

(b) Housing costs

For the purposes of the Means Test, an applicant is a resident of the Greater Metropolitan Region if he or she lives in a local government area defined in Schedule 1 of the Greater Cities Commission Act 2022 (NSW).

Housing costs include amounts paid for any style of housing as a place of residence on a regular basis and include rent, half board, mortgage instalments and municipal and water rates.

(c) Child care costs

Child care costs may only be deducted if they are necessarily incurred by the applicant in order to work or study.

(d) Financially associated person allowance

A financially associated person allowance is to be deducted for each financially associated person whose income is included in assessable income.

(e) Dependant allowance

A dependant allowance is to be deducted for all genuine dependants whether or not they reside with the applicant (except dependent children who do not reside with the applicant).

(f) Child support

A deduction may be made for child support or child maintenance payments made for children who do not reside with the applicant.

1.4.4.7 - The Income Test for Centrelink recipients

(a) Centrelink income support payment at the maximum rate

An applicant receiving a Centrelink income support payment at the maximum rate satisfies the Income Test if:

• he or she has no financially associated person, or
• any financially associated person is also receiving a Centrelink income support payment at the maximum rate.

Centrelink recipients must also satisfy the Assets Test and the Lifestyle Test: see Means Test 1.4.5 Assets Test and Means Test 1.4.6 Lifestyle Test.

Applicants who are granted legal aid are required to pay an income contribution of $75.00 unless the matter is exempt from initial contributions: see Means Test 1.4.7.6 Matters exempt from initial contributions.

The Centrelink income support payments to which this policy applies are set out in the following table.

NOTE: A current Centrelink Statement of Benefit which states that the applicant or financially associated person is currently entitled to a Centrelink benefit or pension payable at the maximum rate is evidence of that fact.

(b) Partial Centrelink income support payment

If:

• the applicant,
• any financially associated person, or
• both

receive a partial Centrelink income support payment, the applicant must satisfy the standard income test (see Means Test 1.4.4 Income Test, Means Test 1.4.5 Assets Test and Means Test 1.4.6 Lifestyle Test). 

1.4.5.1 - Assets Test for short matters

The below sets out the Assets Test that is applied in short matters. Short matters are:

• Local Court criminal matters except:
  • committals 
  • matters where a plea of not guilty has been entered, and
  • matters requiring expenditure

1.4.5.2 - Assets Test in all other matters

The following table sets out the assets test applied in all other matters.

NOTE: All applicants must also satisfy the income test and lifestyle test: see Means Test 1.4.4 Income Test and 1.4.6 Lifestlye Test.

Note: where an applicant for legal aid is eligible for aid under the Means Test, and they own real property. as a condition of the grant of legal aid (unless it is an exempted matter), they will be required to execute a charge to secure the total costs and expense of providing the legal service, where:

• it is an expensive matter – this includes family law court proceedings, criminal indictable matters including EAGP and trials, and higher court civil proceedings, or
• the dispute is about the property.

1.4.5.3 - How to calculate net assessable assets

The Assets Test is applied to the applicant's net assessable assets.

Net assessable assets are:

• the applicant's gross assessable assets (see Means Test 1.4.5.4 Gross assessable assets - what is included?), less
• excluded assets (see Means Test 1.4.5.5 Excluded assets).

1.4.5.4 - Gross assessable assets - what is included?

All assets are included in gross assessable assets, including, but not limited to, the following:

• land
• cash
• shares
• debentures
• other investments.

1.4.5.5 - Excluded assets

The following table sets out the assets which are excluded when calculating the net assessable assets. The value of any asset in excess of the maximum allowed value must be included in the applicant's net assessable assets.

1.4.5.6 - Information about lump sum payments excluded from the assets test

Compensation payments

Lump sum compensation payments in hand are excluded from the applicant's net assessable assets if:

• neither the applicant nor their dependants is working, and

• the compensation recipient is currently precluded under s 17 and Part 3.14 of the Social Security Act 1991 (Cth) from receiving a pension or benefit.

Child support or maintenance payments

Lump sum child or spouse maintenance in hand are excluded from the applicant's net assessable assets where the applicant is receiving a pension or benefit at a reduced rate under the maintenance income test.

Other lump sum payments

Other lump sum payments (e.g. superannuation paid on retrenchment or resignation) are excluded from the applicant's net assessable assets if:

• they are treated as income by Centrelink, and

• they preclude the applicant from receiving benefits.

Lump sum payments treated as income

In these cases the applicant will be deemed to have a gross weekly income equal to all employees' average weekly earnings (AWE) during the Centrelink preclusion period. If the sum does not prevent the applicant from drawing a Centrelink benefit it is included in the applicant's net assessable assets.

Recognition, redress and reparation payments

Lump sum recognition payments from a redress or reparation scheme listed in the Means Test Guideline 1.3 Reparation, recognition and redress payments are excluded from the applicant’s net assessable assets.

Date last published: 11 March 2024

1.4.6.1 - Lifestyle Test

In addition to satisfying the income test and the assets test, to be eligible under the Means Test, the applicant must also satisfy the Lifestyle Test.

An application for legal aid will be refused where Legal Aid NSW considers that the applicant can afford to pay their legal costs, taking into account:

• information about the applicant's lifestyle, activities and interests, and
• information about the applicant's general expenditure.

Legal Aid NSW officers authorised under the Delegation Instrument 14.5 can refuse legal aid to applicants under the Lifestyle Test.

1.4.7.1 - Initial contribution under s46(1)(a)

The Means Test is used to assess contributions under s 36(1)(a) of the Legal Aid Commission Act 1979.

1.4.7.2 - When contributions are levied

Initial contributions under s 36(1)(a) of the Legal Aid Commission Act 1979 are levied, in accordance with the Means Test, in all matters except for the matters listed in the Means Test 1.4.7.6 Matters exempt from initial contributions.

1.4.7.3 - Income contribution

An income contribution is payable based on the applicant's net assessable income. The amount of contribution is set out in the following tables.

Table a. For all matters in which a contribution is payable, except Local Court criminal matters. (For Local Court criminal matters where a contribution is payable, see Table b).

Legal aid will only be available in exceptional circumstances where the net assessable income exceeds $450. For these matters, the contributions are stated below.

Table b. For Local Court criminal matters in which a contribution is payable.

Legal aid will only be available in exceptional circumstances where the net assessable income exceeds $450. For these matters, the contributions are stated below.

1.4.7.4 - Assets contribution

An assets contribution is payable based on the applicant's net assessable assets. Net assessable assets are the applicant's gross assessable assets less excluded assets (see Means Test 1.4.5.5 Excluded assets). 

Assets contributions for most matters are calculated in accordance with the formula in the following table. The actual contributions payable are set out in Means Test 1.4.12.1 Contributions on net assessable assets.

 A modified contribution scale applies in Local Court criminal matters where a plea of not guilty has been entered or requiring expenditure. It is set out in Means Test 1.4.12.2 Local Court criminal matters (except committals) only.

1.4.7.5 - Total contribution

The following table sets out how the total contribution amount is calculated.

1.4.7.6  - Matters exempt from initial contributions

Initial contributions under s36(1)(a) of the Legal Aid Commission Act 1979 are not payable:

• in any matters which are not means tested (see Means Test 1.4.1 What matters are means tested?), or
• in any of the following matters:

Criminal

• Local Court Duty matters;
• the protected person in apprehended domestic violence order proceedings;
• representation provided by the Prisoners' Legal Service.

Family

• proceedings under the Children and Young Persons (Care and Protection) Act 1998 (NSW);
• child support matters;
• Family Dispute Resolution conferences.

Civil

• persons the subject of the proceedings in Mental Health Advocacy Service matters;
• coronial inquest matters.

1.4.8.1 - Contribution determined under s36(1)(b)

If legal aid is granted subject to a condition that the legally assisted person make a contribution to any costs ordered against them, the Means Test is used to assess the amount of such contribution (see s 36(1)(b) of the Legal Aid Commission Act 1979).

1.4.8.2 - The amount of contribution

The amount of contribution is calculated on the applicant's income and assets using the procedure set out in Means Test 1.4.7.3 Income contribution and Means Test 1.4.7.5 Total contribution.

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 (See Means Test 1.4.4.3 How to calculate net assessable income),
  • If the assets contribution and/or the income contribution exceeds the allowable amount for the type of matter (See Means Test 1.4.5.3 How to calculate net assessable assets).
• 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 Reducing or waiving an initial contribution).

1.4.9.1 - Income exceeds the maximum threshold by up to 10%

The following table sets out the discretion available under the means test where the applicant’s net assessable income exceeds the maximum threshold by up to 10%.

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 except those listed in Contributions policy 6.4.2 Matters exempt from initial contributions (see Means Test 1  How initial contributions are determined).

Initial contributions may be waived or reduced where Legal Aid NSW is satisfied that there are exceptional circumstances (see Means Test 7.10.5 and Contributions guideline at 6.2).

1.4.9.2 - Income exceeds the maximum threshold by over 10%

The following table sets out the discretion available under the means test where the applicant’s net assessable income exceeds the maximum threshold by over 10%.

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 except those listed in Contribution policy 6.2.4 Matters exempt from initial contributions. 

Initial contributions may be waived or reduced where Legal Aid NSW is satisfied that there are exceptional circumstances (see Contributions policy 6.2.1.2 Exercising discretion to reduce or vary the inital contributions and Contributions guideline 6.2 Factors to take into account.

If the income contribution exceeds the allowable amount for the type of matter, the applicant does not satisfy the Means Test – see Means Test 1.4.9.3 Contribution exceeds the allowable amount for the type of matter (cost of proceedings), below.

1.4.9.3 - 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 who does not meet the Means Test because their calculated contribution (on income and/or assets) exceeds the allowable amount for the type of matter.

See Means Test guideline 1.5 for the allowable amount for each type of matter.

See Means Test guideline 1.1 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 a contribution in all matters except those listed in Means Test 1.3.31 Matters exempt from initial contributions (Means Test 1.4.7.3 Income contribution to Means Test 1.4.7.5  How total initial contributions are determined).

Initial contributions may be waived or reduced where Legal Aid NSW is satisfied that there are exceptional circumstances (see Means Test 1.3.37 and Contributions guideline at 6.2).

1.4.9.4 - 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.

1.4.9.5 - Waiving or varying contributions

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

1.4.10.1 - Verification required

Legal Aid NSW requires that applicants for legal aid verify their means (both income and assets) as disclosed in the legal aid application.

If the Means Test is applied to the means of any financially associated person, their means must also be verified.

1.4.10.2 - Verification of applicant's means

The following table sets out what documentation is required to verify means subject to the exceptions set out at Means Test 1.4.10.4.

1.4.10.3 - Result of non verification of means – application for legal aid refused

A grant of aid will not be made until the means of the applicant have been verified by the determining officer unless the exceptions below apply.

Legal Aid NSW will refuse the application for legal aid if the required documents verifying means are not produced within a reasonable period of time of being requested.

1.4.10.4 - Exceptions – verification not required

The following table sets out the policy when verification of means is not required.

1.4.10.5 - Discretion to waive verification

The following table sets the discretion to waive the verification of means.

1.4.11.1 - Children

The assessable income of a child applicant is:

• the income of that child where that child supports himself/herself from that income,
• any government benefit received by that child in his/her own right, and
• the income of the parents/guardians who support the child unless
• the parents/guardians have a contrary interest in the matter,
• disclosure of the matter to the parents/guardians would damage the relationship, or
• the parents/guardians are genuinely unwilling or unable to assist the child in the matter.

The assessable assets of a child applicant are:

• the assets of that child where that child supports himself/herself from an income and/or government benefit  received by that child in his/her own right, and
• the assets of the parents/guardians who support the child unless
• the parents/guardians have a contrary interest in the matter,
• disclosure of the matter to the parents/guardians would damage the relationship, or
• the parents/guardians are genuinely unwilling or unable to assist the child in the matter.

1.4.11.2 - Corporations

Where the applicant is a corporation, the Means Test is applied to the income and assets of:

• the corporation, and
• any person whose interest it is considered will be directly and beneficially affected if legal aid is granted to the applicant.

1.4.11.3 - Members of unincorporated associations

Where the applicant is a member of an unincorporated association, the Means Test is applied to the income and assets of:

• the association, and
• any member of the association whose interests it is considered will be directly and beneficially affected if legal aid is granted to the applicant.

1.4.11.4 - Groups

Where the applicant is seeking legal aid on behalf of a group the means to be considered are the means of the applicant and the group.

When applying the Means Test to a group the following must be considered:

• the financial support that would be available from those members of the community who would be likely to support the aims of the group in the matter for which assistance is sought,
• the group's ability to afford the cost of the legal proceedings,
• the applicant's assets, and
• the general assets of the group.

Note: where the applicant is a representative of an Aboriginal and Torres Strait Islander wider family or community group, and has been given leave to be heard under s 87 of the Children and Young Persons (Care and Protection) Act 1998 (NSW), only the means of the applicant should be taken into account when assessing eligibility under the Means Test.

1.4.11.5 - Applicants in Family Provision Act proceedings

Where the applicant is applying for legal aid for proceedings under the Family Provision Act 1982 (NSW), the Means Test is applied to the income and assets of:

• the applicant, and
• any other persons whose interest it is considered will be beneficially affected if legal aid is granted to the applicant.

1.4.12.1 - All matters except Local Court criminal matters (but including committals)

1.4.12.2 - Local Court criminal matters (except committals) only

There is a discretion to grant legal aid to an applicant when the Means Test provides that legal aid is only available in exceptional circumstances (see Means Test 1.4.4.2 on income and Means Test 1.4.5.1-2 on assets).  

The discretion is available under the Means Test where:

• the applicant’s net assessable income exceeds the maximum threshold by up to 10% (see Means Test 1.4.9.1)
• the applicant’s net assessable income exceeds the maximum threshold by over 10% (see Means Test 1.4.9.2)
• the applicant’s calculated contribution (income and/or assets) is greater than the allowable amount for the type of matter (see Means Test  1.4.9.3 ).

Legal aid may be granted where the delegated officer is satisfied there are exceptional circumstances taking into account the listed factors. These guidelines are intended to provide guidance on how the discretion is exercised. 

Legal Aid NSW officers authorised under the Delegation Instrument clause 14 can exercise these discretions.

1.1 - Guidance on factors to take into account regarding the nature of the legal proceedings and the financial circumstances of the applicant

This Guideline relates to Means Test 1.4.9.1 to  Means Test  1.4.9.3. 

There is discretion to grant legal aid where the applicant or legally assisted person does not satisfy the Means Test. This Guideline provides guidance on taking into account factors regarding the nature of the legal proceedings and the financial circumstances of the applicant.

Legal aid may be granted where the determining officer is satisfied there are exceptional circumstances taking into account factors, which may include (but are not limited to) the following:

Nature of the legal proceedings

• the likely cost of the proceedings – consider the applicant’s ability to meet the likely costs of proceedings if not legally aided. Consider whether the matter is a relatively low-cost matter (such as tribunal proceedings), or an expensive matter (such as family court matter, civil proceedings in higher courts, indictable crime and criminal proceedings in higher courts).
• the type of proceedings – consider whether the legal proceedings go to the applicant’s fundamental rights and needs (eg criminal matter, care and protection matter, mental health matter, housing matter, social security matter). Consider whether the applicant would be able to obtain private representation for the matter if not legally aided. Consider the likely length and complexity of the proceedings. Consider whether the nature of legal proceedings are likely to impact the applicant’s ability to earn an income and/or are necessary to ensure access to the applicant’s assets.

Financial circumstances of the applicant

• the overall financial position of the applicant – consider the overall financial position and any financial vulnerabilities of the applicant (eg whether the applicant has no savings, whether the applicant is in significant debt they are struggling to repay, whether the applicant is behind or at risk of falling behind on mortgage or rental payments, whether the applicant has difficulty meeting essential utility payments such as electricity, water, phone or gas).
• whether the applicant would suffer undue financial hardship if legal aid was refused – consider whether the applicant would suffer financial hardship if not legally aided and required to pay for private legal representation (eg whether it would likely result in the applicant being unable to meet essential living costs such as housing costs, household expenditure and utilities, whether the applicant would be required to go into debt). Consider whether the nature of legal proceedings are likely to impact the applicant’s ability to earn an income and/or are necessary to ensure access to the applicant’s assets.
• whether there is sufficient time for the applicant to raise the funds necessary to pay for private legal representation – consider at what point in the proceedings the applicant is applying for legal aid (eg whether they have already expended funds on private legal representation, the likely length and complexity of the remaining proceedings). Consider whether the hearing or trial is imminent. Consider whether the applicant’s financial circumstances have changed during the course of proceedings (see 4.3.3 below).
• whether the applicant could reasonably be expected to borrow against assets - Consider the likely interest component arising from redrawing on a mortgage (noting this facility is not always available). Consider whether it is appropriate to exercise discretion to grant legal aid as the applicant will be required to execute a charge if they own a property. Note: this factor is only relevant to Means Test 1.4.9.3.

1.2 - Guidance on factors to take into account regarding the personal circumstances of the applicant

This Guideline relates to Means Test 1.4.9.1 to Means Test 1.4.9.3. 

There is discretion to grant legal aid where the applicant or legally assisted person does not satisfy the Means Test. This Guideline provides guidance on taking into account factors regarding the personal circumstances of the applicant that may impact on their ability to raise or access the funds necessary to pay for legal costs.

Legal aid may be granted where the determining officer is satisfied there are exceptional circumstances taking into account factors, which may include (but are not limited to) the following:

Personal circumstances of the applicant may impact their ability to raise or access funds to pay legal costs, and may include where the applicant:

• is a victim of domestic and family violence (DFV) – consider whether the applicant’s experience of domestic and family violence impacts their ability to raise or access funds to pay for legal representation (eg whether they are living in a refuge, whether they are unable to access financial information held by the other party, whether they experience significant trauma or injury as a result of the DFV that impacts their ability to earn income). Consider whether the applicant has access to savings, but this money is required to re-establish themselves after moving due to DFV or the money is put aside as an emergency fund due to a history of DFV.
• has significant mental health issues – consider whether the applicant’s mental health issues impact their ability to raise or access funds to pay for legal representation (eg whether they are able to organise access to funds, whether they are impacted by capacity issues, whether their mental health impacts their ability to earn income).
• lacks social or family support networks – consider whether the applicant lacks any social or family support networks that could assist them in meeting legal costs, or meeting their living costs if they were to spend their available money on legal representation (eg the applicant may be a recently arrived refugee).
• has significant and/or ongoing medical expenses because of a medical condition or disability – consider whether the applicant’s additional disposable income and/or assets are intended to cover expenses arising from a medical condition or disability (eg medication, treatments, specialised equipment).
• has unstable or temporary housing or employment – consider whether the applicant’s additional disposable income and/or assets are intended to as a buffer to cover anticipated changes to their housing or employment situation (eg where the applicant or their FAP is on a temporary contract that is due to end and they have no other employment lined up, or the applicant is renting a property and the lease is due to end and they have saved money for a new bond).
• has cultural obligations that amount to extraordinary family responsibilities – consider whether the applicant’s income and/or assets are shared with broader family or kinship group members who would not be considered dependants under the Means Test. Consider whether the applicant has cultural obligations that amount to expectations to support a broader kinship group or take on extraordinary family responsibilities.

1.3 - Guidance on factors to take into account regarding income

This Guideline relates to Means Test 1.4.9.1 to Means Test 1.4.9.3. 

There is discretion to grant legal aid where the applicant or legally assisted person does not satisfy the Means Test. This Guideline provides guidance on taking into account factors regarding whether the applicant is experiencing circumstances relating to their income (including income deductions) that may impact on their ability to raise or access the funds necessary to pay for legal costs.

Legal aid may be granted where the determining officer is satisfied there are exceptional circumstances taking into account factors, which may include (but are not limited to) the following:

Circumstances relating to the applicant’s income (including income deductions) that may impact on their ability to raise or access the funds necessary to pay for legal costs. Relevant circumstances may include:

• where the legally assisted person has changed their financial circumstances during proceedings as a result of gaining or changing employment – there is a requirement to reassess means where there has been a change in the legally assisted person's financial circumstances - in doing so, consider whether it is appropriate to exercise discretion to continue a grant of legal aid. Consider whether the legally assisted person's improved circumstances may be fundamentally important to the outcome of the legal proceedings (eg sentencing, care and protection matter, family law parenting matter). Consider whether the legally assisted person is participating in an Indigenous Court List (eg the Walama list). Consider whether the improved financial circumstances would be sufficient to pay for legal representation, particularly with regard to the stage of the matter and whether additional costs might be incurred by terminating the grant where the matter may be transferred to a private practitioner (see above 4.3.1).
• where the applicant is renting in a regional/remote area that is experiencing a housing crisis/rental shortage – consider whether the increased rental costs are due to a natural disaster such as bushfires or flooding.
• where the applicant is incurring childcare costs that exceed the weekly allowance as a result of limited access to services in a regional/remote area – consider whether the applicant is incurring extensive childcare costs because they are living in a regional or remote area with no or very limited access to subsidised childcare and must pay out of pocket for alternative services. Consider also if they have several children in childcare and their costs form a significant portion of their income.

1.4 - Guidance on factors to take into account regarding assets

This Guideline relates to Means Test 1.4.9.3 Discretion to grant legal aid where the applicant does not satisfy the Means Test.

There is discretion to grant legal aid where the applicant or legally assisted person does not satisfy the Means Test. This Guideline provides guidance on taking into account factors regarding whether the applicant is experiencing circumstances relating to their assets that may impact on their ability to raise or access the funds necessary to pay for legal costs.

Legal aid may be granted where the determining officer is satisfied there are exceptional circumstances taking into account factors, which may include (but are not limited to) the following:

Circumstances relating to the applicant’s assets that may impact on their ability to raise or access the funds necessary to pay for legal costs. Relevant circumstances may include:

• where the applicant has purchased assets with their recognition, redress or reparation scheme payments – cash payments in hand are excluded assets, so consider whether it is appropriate to exclude other assets (eg caravan, property, shares) purchased with the recognition payment.
• where the applicant has received an insurance payment due to loss or damage of an asset – this would include insurance payments made for natural disasters (eg fire and flood) and other insurance payments (eg car, storm damage to roof), and those payments are intended to cover the repair or replacement of a lost or damaged asset. Consider whether the money is likely only with the applicant for a short time and whether it has a clearly designated purpose.
• where a property in dispute has been sold and the money is held in trust pending final settlement – where Legal Aid NSW has funded the property proceedings, consider whether the legally aided person can access the funds, and if not consider continuing funding until the conclusion of the matter having regard to s 46 of the Legal Aid Commission Act 1979 (NSW).

2.1 - 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: Means Test 1.4.2 Whose means are considered when applying the Means Test?

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.

2.2 - 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 1.4.2 Whose means are considered when applying the Means Test?

3.1 - List of schemes

Only payments from these schemes are excluded from the applicant’s net assessable assets:

• NSW Stolen Generations Reparations Scheme;
• NSW Funeral Assistance Fund;
• Territories Stolen Generations Redress Scheme;
• Victorian Stolen Generations Reparations Package;
• South Australian Stolen Generations Reparation Scheme;
• Defence Abuse Reparation Scheme;
• Department of Veterans’ Affairs payments to Australian prisoners of war;
• National Redress Scheme for People who have experienced institutional child sexual abuse;
• NSW Victims Support Scheme Recognition Payments;
• NSW Victims Support Scheme Financial Support Payments;
• Youpla Group (previously known as Aboriginal Community Benefit Fund) Funeral Benefits Program.

Where an applicant for legal aid has received a lump sum payment from a redress or reparation scheme that is not included in the above list:

• if the application is urgent, the determining officer may consider exercising discretion (Means Test 1.4.9 Discretions) to exclude the payment from the applicant’s net assessable assets, having regard to whether the scheme satisfies the factors listed in Guideline 1.3.2 below. The scheme should then be referred to the CEO to consider including it in the list of schemes where payments are excluded from the applicant’s net assessable assets.
• If the application is not urgent, the determining officer should refer the scheme to the CEO for consideration in accordance with Guideline 1.3.2.

Where an applicant for legal aid has purchased any financial or other assets with their scheme payment, the determining officer may consider exercising discretion to exclude assets held to the amount of the initial lump sum payment from the applicant’s net assessable assets (Means Test 1.4.9 Discretions) .

3.2 Criteria to be considered when amending the list of schemes

The following criteria may assist the CEO in determining whether a scheme should be added to the list above:

• The payments are intended to be ‘recognition’ for harm caused. The payments are not compensation or based on an assessment of economic loss or intended to form income support.
• The scheme may be established to provide redress or reparation for harm caused to an individual, often (but not solely) because of the actions and policies of governments or established institutions.
• The payments may be exempt from income and/or asset tests for Commonwealth Government social security type payments.
• The scheme may specify the payments are exempt from being used in a way that is detrimental to the applicant or goes against the purpose of the payment. This could include requiring the payments are non-taxable or exempting the payments from debt recovery or from creditors where the recipient is bankrupt.

4 - Lifestyle test

When applying the Lifestyle Test, the determining officer should consider whether:

• The applicant’s lifestyle, activities and interests suggest they have, or should have access to, sufficient means to be able to afford to pay for the services of a private practitioner without undue hardship.

Some examples of what may indicate a lifestyle, interests or activities that may require further interrogation, include, where, for example the applicant:

• drives a prestige car (eg. a Lamborghini),
• lives in an expensive suburb and expensive housing which is well beyond their means as disclosed in their application for legal aid,
• has regular overseas holidays.

Note: where an applicant receives regular money into their bank account from a relative (who is not a FAP) or friend, it should be treated as income under the Income Test.

Note: where an applicant receives a lump sum payment from a relative (who is not a FAP) or friend it should be treated as an asset under the Assets Test.

5 - The Allowable Amount for a matter

Where an applicant does not satisfy the Means Test because the assessed contribution exceeds the allowable amount for the type of matter.

The allowable amount for each type of matter is:

Criminal law

Family law

Civil law

Where an officer with the delegation (Grade VI solicitor) decides to exercise discretion to grant aid where the applicant is outside on means, they can grant aid in exceptional circumstances with the initial contribution being set at the allowable amount for the type of matter.

Note: There is a discretion to increase the contribution above the allowable amount for the type of matter. See Means Test discretions (Means Test 1.4.9 Discretions).