Guideline Assets Test

Assets Test - National Means Test		Guideline: State Number: 29 (Part) Effective Date: 6/96
2.	The Assets Test
	The assets of the applicant are also taken into account in determining whether or not legal assistance should be granted.
2.1	Assessable Assets
	The assessable assets of an applicant are the total assets of the applicant and any financially associated person (less excluded assets), unless:
	they are separated; the financially associated person has a contrary interest in the matter; disclosure of the legal problem would damage the relationship; or there are other special reasons why the financially associated person's assets should be disregarded.
	Assessable assets are assets in which the applicant has a legal or equitable interest. "Asset" may include real estate or personal items not registered in an applicant's name.
2.1.1	Assessable Assets of a Child
	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 their own right; or the assets of the parent(s) or guardian(s) who supports the child unless: a parent(s)/guardian(s) has a contrary interest in the matter; or disclosure of the matter to the parent(s)/guardian(s) would damage the relationship; or the parent(s)/guardian(s) is genuinely unwilling or unable to assist the child in the matter;
	unless, due to policy or administrative reasons, the Commission decides not to assess the child's assets.
2.1.2	Excluded Assets
	The following assets should be excluded form the applicant's assessable assets:
	household furniture and effects which are reasonably necessary; clothing; equity in tools of trade, unless they are of exceptional value; equity in up to two motor vehicles, where those vehicles belong to a household of two or more persons whose combined incomes are assessable for the purposes of the application for assistance, where the combined total equity does not exceed the maximum set out in Schedule B . the equity in the principle place of residence which includes a dwelling, caravan, or any other accommodation in which the applicant normally resides or land on which the applicant is actually currently building a home or has recently completed building a home in which he/she intends to reside, up to the maximum set out in Schedule B ; the equity in a farm or business which provides the applicant's main source of income up to the maximum set out in Schedule B ; lump sum compensation or other payments in hand (eg. superannuation upon retrenchment or resignation) where neither the applicant or their dependants are working and where the person to whom the compensation was paid is not entitled to receive any benefit or pension under Part 17 of the Social Security Act. In these cases the applicant will be deemed to have a gross weekly income equal to male average weekly earnings as set out in Schedule B for the period during which the applicant is not entitled to any benefit or pension; and lump sum child or spouse maintenance in hand where the applicant is receiving a pension or benefit at a reduced rate under the maintenance income test.
	NOTE: Where the lump sum payment does not prevent the applicant from drawing a Social Security benefit, it should be assessed as an asset.
2.1.2	Sale of Excluded Assets
	Where it appears reasonably likely that an excluded asset will be sold during the course of the matter and that the applicant will receive sufficient funds to pay privately for the required legal services, assistance may be refused.
2.2	Discretion to Disregard Home Equity of Aged Applicants
	Where an applicant is ineligible for assistance due to excess equity in accommodation and:
	is aged over 60 years; and is in receipt of an income tested pension or benefit; and has lived in his/her home for 5 years or more unless it has been necessary to buy alternative accommodation by reason of disability or ill health,
	the Commission has a discretion to grant assistance.
	The Commission will determine the person(s) or classes of person(s) in which the discretion is vested.
	Where assistance is granted in these circumstances, the applicant will be required to pay a full contribution. Payment of such a contribution may be secured by an equitable charge over any property owned by the applicant.
2.3	Assets for Which Ownership is in Dispute
	An asset the actual ownership of which is the issue for which legal assistance is sought should be an excluded asset until ownership is clarified. If ultimately the applicant's ownership is determined, a contribution should be imposed having regard to the value of the asset and the cost of the legal assistance provided. This does not include assets in matrimonial property disputes where the legal issue is proportionate distribution rather than actual ownership.
	An asset apparently owned by the applicant, or a financially associated person whose assets are assessable, which is not the subject of the matter for which legal assistance is sought should be regarded as the applicant's asset and included in any means test assessment unless the applicant or financially associated person satisfies the Commission that he/she is not the owner of the asset.
2.4	Debts
	Debts are not allowed as a set off against assets unless they are secured against specific assets by registrable instrument.
2.5	Assets Allowance
	Without taking into account excluded assets, an applicant may have assets up to the maximum value set out in Schedule B and still be eligible for legal assistance provided the income test is also satisfied.
2.6	Contributions on Assets
	Where the value of an applicant's assets is greater than the amount set out in Schedule B , legal assistance may be granted on the condition that the applicant pays a contribution. The amount of the contribution may vary depending on the value of the assets and the likely cost of the matter for which assistance is sought.
2.6.1	Refusal Where Initial Contribution Exceeds likely Costs
	An applicant should be refused legal assistance where the contribution on assets is greater than the Commission's estimate of the costs of paying for the services from a private lawyer.
	The Commission has a discretion to grant assistance to an applicant who is not eligible on assets in exceptional circumstances.
	Exceptional circumstances may exist where:
	there is not sufficient time for an applicant to raise the funds necessary to pay for a private lawyer; and/or the applicant could not reasonably be expected to borrow money to do so.
	The Commission will determine the person(s) or classes of person(s) in whom the discretion is vested.
	Where assistance is granted in these circumstances the applicant will be required to pay a full contribution. Payment of such a contribution may be secured by an equitable charge over any property owned by the applicant.

	See Schedule A Assets Test Benchmarks

Page Last Revised :Friday, November 14, 2003