Guideline 30 Contributions

Contributions				Guideline : State Number: 30 Effective Date: 6/96
30.1	The assessment by the Commission of contributions to be paid by assisted persons is governed by two fundamental principles:
	A.	That an assisted person shall be required to contribute to the cost of providing assistance according to their ability to pay without undue hardship.
	B.	That subject to paragraph (A) an assisted person shall be placed in a position which, so far as possible, is not better and not worse than that of an unassisted person in relation to the payment of costs at the conclusion of proceedings.
30.1.1	Payment of Contribution
	A contribution is set as a condition of legal aid. Private practitioners are responsible for the collection of contributions on files unless specifically advised to the contrary by the Commission. The amount of the contribution on income is assessed according to Part 6b and depends on the category of the legal matter for which assistance is sought and the amount of the applicant's weekly disposable income.
30.2	Initial Contributions
	Subject to any discretion vested in the Director, where an applicant satisfies the Means Test, an initial contribution will be payable at a minimum level of $60.00.
30.2.1	Refusal of Assistance
	There is no universal upper limit on the amount of weekly disposable income that an applicant may have and still qualify for contributory assistance. See steps for assessing contributions in Part 6b .
30.3	Contribution on Assets
	The amount of contribution on assets is calculated according to Part 6b for all types of matters. If it will be necessary for an income-producing asset (e.g.: bank savings) to be used to pay a contribution and loss of income will result, the income test should be applied to that new income.
30.4	Payment of Contribution
	Contribution on assets will ordinarily be payable by one instalment upon acceptance of an offer of assistance. Applications for extension of time will be considered.
30.4.1	It is Commission policy that unpaid contributions, not waived by the Director, will be enforced by legal proceedings in the appropriate Court or Tribunal.
30.5	Final Contributions
	The Means Test applies only to initial and interim contributions.
	The final contribution is assessed with regard to the outcome of the proceedings, and not pursuant to the Scales of the Means Test.
	Where the monies are recovered, normal policy is to require full contribution of the gross fees and disbursements (i.e. 100%) from the settlement funds.
	If some contributions have been paid along the way, pursuant to the Means Test these are set-off against the final sum required see Guideline 30.6 .
	Departure or waiver from the requirement of full costs from settlement funds, should only be granted in the most extreme cases ("special circumstances"), as it is intended that full costs should ordinarily be recovered by the Commission.
	The term "special circumstances" is by its very nature, incapable of precise or exhaustive definition, but generally, special circumstances will not be regarded as present where:
	a.	the assisted person has spent, or otherwise disposed of the award despite prior advice that all or part of the costs would be recoverable as a contribution.
	b.	the assisted person's solicitor has released settlement monies to the person in breach of the terms of assignment and the assisted person is unable or unwilling to repay the debt. In such a situation, recovery action may be taken.
	c.	the assisted person wishes to pay out other creditors.
	d.	the assisted person wishes to use the settlement sum to purchase a home.
	e.	the settlement is less than the amount that the assisted person feels that he or she was entitled to receive.
	f.	the legal costs vis-a-vis the settlement funds result in little or no available funds to the assisted person, after costs are deducted.
30.5.1	Assessment of Final Contributions
	A.	In applying the two fundamental principles governing the assessment of contributions, the person making the assessment shall have primary regard to the proposition that an assisted person should be placed in a position which is, so far as possible, equal to but no better than that of an unassisted person in relation to the payment of costs. Consideration shall then be given to the question whether the assisted person would, if she or he was required to pay the full amount of costs, be placed in a position of undue hardship. In determining whether undue hardship would occur in the particular case, consideration shall be given to all relevant factors including, where applicable, the following:
	a.	The cost to the Commission of providing assistance.
	b.	The value of any sum of money or property or other benefit obtained by the assisted person as a result of the proceedings.
	c.	The nature and extent of the assisted person's current income, assets and liabilities and whether any relevant changes in the assisted person's financial situation are likely to occur in the near future.
	d.	The uses to which the assisted person proposes to put any funds obtained as a result of the proceedings and the extent to which it is reasonable that those uses should be given priority over payment of legal costs.
	e.	The extent to which an assisted person or other parties to proceedings have by their unreasonable conduct unnecessarily increased the cost of proceedings shall be a relevant factor to be taken into account when assessing the assisted person's contribution.
	f.	Contributions shall ordinarily not be required in cases involving a question of public importance or cases having the character of test cases unless the assisted person stands to gain a substantial personal financial benefit as a result of the proceedings. Assisted persons should not be required to pay for a resolution of legal points or questions of public interest going beyond their immediate concern in the case at issue.
	B.	Where an amount in respect of costs is recoverable by an assisted person the Director shall determine the amount of their contribution in accordance with the following:
	a.	Where an order is made in a proceeding that the costs, whether or not including disbursements, of a legally assisted person be paid by another party to the proceedings, the amount to be determined by the Director shall include the whole of those costs and the whole of any disbursements so recovered.
	b.	Where, by virtue of a settlement or compromise, another person has agreed to pay a specified amount in respect of the costs, or of the costs or disbursements, of a legally assisted person, the amount to be determined by the Director shall include the whole of such amount.
	c.	The amount of the person's total contribution toward the cost of assistance, to be determined by the Director shall equal the sum of the ordinary professional costs (including solicitor and client costs) of the legal services provided to the person in the proceeding or matter in respect of which legal assistance was provided and any disbursements (including barrister's fees) and out-of-pocket expenses incurred in or in connection with the provision of those services unless, in the opinion of the Director, such a determination would operate unfairly to or cause hardship to the applicant or her or his dependants.
	d.	In forming his/her opinion as to whether or not a determination might operate unfairly to or cause hardship to an applicant or his/her dependants, the Director shall have regard to the following considerations:
		i.	the amount recovered and/or recoverable by the legally assisted person in the proceeding or matter;
		ii.	the age of the applicant;
		iii.	the state of health of the applicant;
		iv.	the income of the applicant;
		v.	the outgoings to which the applicant is committed;
		vi.	any other special needs of the applicant;
		vii.	the age, state of health and special needs (if any) of the dependants of the applicant;
		viii.	the purpose to which the applicant proposes to apply the amount recoverable in the proceeding or matter;
		ix.	the actual cost to the Commission of the proceeding or matter; and
		x.	the effect of the outcome of the proceeding or matter on the financial or domestic situation of the legally assisted person and of his dependants.
	C.	An assisted person who is required to contribute to costs has the right to sight a copy of his/her lawyer's account. An assisted person has the right to verify for himself/herself that the amount of costs which the Commission says it has paid, or will pay, has in fact been claimed by the lawyer and has the right to verify for himself/herself whether the services for which costs are claimed by the lawyer were in fact performed. An assisted person who is required to repay the full amount of costs shall be expressly informed by the Commission of this right.
	D.	Applicants for assistance shall, at the time assistance is offered, be informed by the Commission that they should expect to have to repay to the Commission the full amount of costs from any monetary settlement obtained or from the proceeds of sale of an interest in property proceedings and that they may be required to give the Commission an equitable charge to secure repayment of costs. The actual contribution shall be determined in the light of the assisted person's circumstances at the time the assessment is made and in accordance with the usual principles applicable to the assessment of contributions.
30.6	Adjustment of Contribution
	Where the final private costs of an assisted matter are less than the total of the contribution plus party-party costs recovered,
	no further instalments of contribution are payable, and if contributions already paid, together with costs recovered, exceed private legal costs the difference is refunded to the assisted person.
30.7	Charges Upon Property
	Assisted persons may be requested to give the Commission an equitable charge over property which they own or in which they have an interest in order to secure payment of a contribution in the future. Equitable charges are taken to ensure so far as possible that assisted persons are treated equally in relation to the payment of contributions. If equitable charges were not taken, assisted persons who were unable to pay contributions immediately because their assets were in the form of property rather than cash, would be placed in a preferred position to assisted persons who could afford a contribution because their assets (while not greater in total value) were in the form of cash rather than property.
	The guidelines for the taking of equitable charges are:
	A.	Applicants for assistance may (in addition to being liable to pay any initial contribution assessed) be offered assistance subject to the condition that they execute an equitable charge where:
	a.	the applicant has an interest in property which is capable of being charged; and
	b.	costs and disbursements may, in the opinion of the Commission, exceed $1,000.00.
	B.	An assisted person may be requested during or at the conclusion of assistance to secure payment of a contribution at a later date by executing an equitable charge to the extent of the full amount of costs and disbursements incurred or to be incurred where:
	a.	the assisted person has an interest in property capable of being charged (including an interest received as a result of proceedings); and
	b.	the assisted person lacks the means to pay a significant contribution by way of lump sum or instalments; or
	c.	costs and disbursements exceed $1,000.00.
	Where land or other property is recovered or preserved for an assisted person in the course of the legal proceedings for which assistance was granted, the Commission may take an equitable charge over that property to secure any contribution owing. The Commission may lodge notice of the charge with the Registrar-General, and must notify the assisted person in writing of the fact that a notice has been lodged and of the amount owing.
	Where an interest in property is the subject of an equitable charge and is sold or otherwise dealt with, the amount of the contribution to be paid by the assisted person shall be the amount of costs and disbursements secured by the charge. Where payment of this amount may, in the opinion of the Commission, cause exceptional hardship the amount of the contribution may be reduced.
	Where a person does not have sufficient income to fund an action and a charge is taken, usually that charge will not be invoked until the death of the surviving financially associated person of the relationship.

Page Last Revised :Friday, November 07, 2003