Guideline Who Qualifies

Who Qualifies - National Means Test		Guideline: State Number: 29 (Part) Effective Date: 6/96
3.	Who Qualifies For Assistance
3.1	Combination of the income and assets tests
	An applicant will qualify for legal assistance where they satisfy both the income and assets tests.
	Where the assessable income or assets or both exceed the maximum amounts set out in Schedule B ( see Income Test Benchmark Amounts or Assets Test Benchmark Amounts ), assistance may be granted on the condition that the applicant pays a contribution. The amount of the contribution will be calculated on the basis of the likely cost of the matter for which assistance is sought.
3.1.1	Refusal where initial contribution exceeds likely costs
	An applicant should be refused legal assistance where the contribution on the combination of the income and assets tests 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 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.
3.2	Ability to borrow
	Where an applicant who is otherwise eligible for assistance can reasonably be expected to raise the necessary funds from private sources or lending institutions or to obtain the services on credit, assistance should be refused.
3.3	Other sources of support
	In assessing the applicant's means the Commission may take into account any financial support actually provided to the applicant or financially associated person by any other person or association including any support which would be likely to be provided upon request eg. from trust funds.
	Discretionary trusts
	The Commission will consider the trust structure and if it finds that:
	the trust is not genuine such that the applicant or financially associated person retains effective control; or the trustee is providing financial support to the applicant or financially associated person or will probably provide it upon request,
	the assets of the trust will be assessed in accordance with the criteria of the means test.
	The Commission may determine these factors by examining:
	the legal framework of the trust; who has the power to appoint and remove trustees and beneficiaries; the history of transactions such as previous distributions; any changes in the trustees; any changes in the class of beneficiaries; and the source of any income received by the trust.
	Where there is no direct evidence that the applicant or a financially associated person is receiving financial support from the trust, but enjoys a standard of living higher than his/her own means should allow, the receipt of support from the trust may be inferred.
3.4	Lifestyle guideline
	Where available information suggests that an applicant's lifestyle, activities or interests are such that in the opinion of the Commission the applicant should have, or have access to, sufficient means to be able to afford to pay for the services of a private practitioner without undue hardship, the application should be refused.
3.5	Corporations, associations and groups
	Where legislation or guidelines permit a Commission to grant assistance to corporations associations or groups the following means test applies:
	Where the applicant seeking legal aid is a group then the means to be considered are the means of the group. In considering the means of the applicant/group, regard should be had to 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.
	In considering the means of the applicant/group, regard should also be had to the group's ability to afford the cost of the legal proceedings having regard to his/her assets or the general assets of the group.

Page Last Revised :Friday, November 14, 2003