commercial activities or lifestyle.
Each matter is assessed separately and an applicant must be eligible in relation to each matter to satisfy the Means Test.
In assessing an applicant’s means
the income and assets of any financially associated person is assessed in the same manner as the income and assets of the applicant; and
the commercial activities or lifestyle of any financially associated person is assessed in the same manner as the commercial activities or lifestyle of the applicant.
In addition, money received but not now available to the applicant or any financially associated person that could have been used to pay for the matter is taken into account. If the applicant has dissipated these funds without making provision for the payment of legal expenses, an application for a grant of legal assistance may be refused.
Ability to borrow is also considered. To the extent that an applicant is considered able to raise funds, borrow, or obtain credit he or she will be expected to do so and the application for legal assistance may be refused.
The Means Test determines the initial contribution an applicant is required to make towards the cost of a matter. If the amount of the contribution (on the basis of the income or assets available to the applicant) is more than the value of the grant of legal assistance, the application may be refused.
The application of the Means Test may result in a determination that the applicant–
The income of an applicant is determined by calculating the total income of the applicant and any financially associated person and then making certain deductions. A sliding scale is applied to the balance to determine whether the applicant meets the income test for a grant of legal assistance and, if so, the sliding scale is applied to determine the contribution payable.
The sliding scale is determined by reference to the Head in workforce, cost other than housing, set out in Table 1 of the Henderson Poverty Line tables.
To determine the income level of the applicant, all funds received by the applicant and any financially associated person are taken into account including
The only funds received that are not taken into account in determining the income levels of the applicants for the purpose of the Means Test (exceptions) are
On determining the income of the applicant, allowable deductions are made to arrive at the applicant’s assessable income. Allowable deductions (up to the allowable maximum) are amounts paid by the applicant or a financially associated person in
The amount to be deducted will be the amount actually spent on an item or the allowable maximum, whichever is lower.
The asset level of an applicant is determined by calculating equity in all assets (other than excluded assets). An allowable asset amount is deducted and a sliding scale is applied to the balance to determine whether the applicant meets the assets test for a grant of legal assistance and, if so, the contribution payable.
A debt will not normally be set off against an asset unless secured over it by a registrable instrument.
The allowable asset amount is a figure set and updated in accordance with the weighted average of the Consumer Price Index/Average Weekly Earnings. The amount varies, depending on whether a person is single or has dependants.
When applying for a grant of legal assistance all assets of the applicant and any financially associated person must be declared.
An asset includes
If an asset is owned jointly or in common, ownership is apportioned accordingly.
The assets of a financially associated person are disregarded if
Assets that must be declared but that do not normally preclude a grant of aid (excluded assets) are
An asset that would normally be excluded may be taken into account if it appears likely to be sold during the case or will otherwise yield funds from which the applicant could pay for legal representation.
Equity in real estate will give rise to a statutory charge if costs exceed a set amount, see Conditions of Legal Aid for more information.
Maximum allowed when determining deductions and excluded assets for the purposes of the Means Test
Cost of housing
The deduction for housing is determined by reference to the average rent of a two bedroom flat in Adelaide as stated in the Real Estate Institute (REI) moving median rental index.
The deduction for child care is determined by the childcare relief figure set by the Commonwealth Department of Health and Community Services, up to a maximum of 50 hours per week.
The deduction for dependants is
The deduction for maintenance is equal to that paid or up to the maximum of the amount allowed for dependants, whichever is the lesser.
Excluded equity in a home is determined by the median price of an established home in Adelaide, by reference to the REI moving median index.
Equity in farm or business
Excluded equity in a farm or business is determined by the assets test used by Centrelink to determine eligibility for a full benefit or allowance, such that
Income and assets assessment for a child applicant
If a child applicant is supporting him or herself, or receiving a Centrelink benefit in his or her own right, the child’s income and assets are assessed in the same manner as any other applicant.
If a child applicant is financially supported by a parent or guardian, the income and assets of that person are assessed. If a child applicant is financially supported by two parents or guardians, the income and assets of both are assessed.
The income and assets of a parent or guardian financially supporting a child may be disregarded if
The income and assets of any parent or guardian must be disclosed, even if grounds exist for it to be disregarded.
Commercial activities or Lifestyle
The commercial activities or lifestyle of an applicant and any financially associated person may be taken into account when determining whether the applicant meets the Means Test. If, by reason of the commercial activities or lifestyle of the applicant or a financially associated person the Commission considers that the applicant or a financially associated person could afford to pay privately for legal representation, an application for legal assistance may be refused.