1. Exercising discretion where the means test is not satisfied

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:

In determining whether there are exceptional circumstances 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. 

See Means Test 9: Discretions under the means test

1.1 - Nature of proceedings and overall financial circumstances

Guidance on factors to take into account regarding the nature of the legal proceedings and the financial circumstances of the applicant (Means Test Discretion 9.1, 9.2 and 9.3)

There is discretion to grant legal aid in exceptional circumstances 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 Discretion 9.3.)

1.2 - Personal circumstances

Guidance on factors to take into account regarding the personal circumstances of the applicant (Means Test Discretion 9.1, 9.2 and 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 - Income

Guidance on factors to take into account regarding income (Means Test Discretion 9.1, 9.2 and 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.
• 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 - Assets

Guidance on factors to take into account regarding assets when exercising discretion under Means Test Discretion 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 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).