2. Whose means are considered when applying the Means Test?
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.
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.
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 Financially Associated Persons for the purposes of the Means Test.
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.
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.
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.
2.4 - One parent family households
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.
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.
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.
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.
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.
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.
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.
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.
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.
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