Means Test Discretion Policy

Applying for discretion

In applying the means test, if compelling reasons exist, we can exercise discretion to:

• consider additional information not listed in these guidelines
• treat all or some of an applicant’s (and if relevant, their partner’s) assets as ‘excluded assets’
• waive the means test or any part of it, or
• waive payment of a contribution or any part of it.

If an applicant believes compelling reasons exist, they should ask us to exercise our discretion and provide the following information:

• a document detailing what their compelling reasons are
• the potential hardship they will experience if they do not receive a grant of aid and/or have to pay a contribution, and
• any additional information that may support the request for discretion to be applied.

How do you apply for discretion?

If an applicant wishes to ask for discretion, they should ask for discretion at the time of applying for the grant. They can also do it after a decision has been made by seeking reconsideration or an independent review of the decision.

What should be provided when applying for discretion?

An applicant can provide information about:

• unusual and necessary expenses they may have
• what hardship they may incur
• any compelling reasons, and
• any additional information that supports the request for discretion to be exercised.

What are some examples of where a decision-maker can use their discretion?

1. An assisted person is required to pay VLA a contribution on their income of $4,000. They request that this contribution is reduced as they are using a portion of their income to pay off infringement fines. The decision-maker could reduce the contribution or spread out the repayment plan to make it easier for the assisted person to make the contribution.
2. An applicant has been refused a grant of legal assistance because their partner’s income is too high. The applicant requests discretion on the basis that their partner is on a 12-month contract that is about to end and will not be renewed. The applicant and their partner provide a statutory declaration form affirming this. The decision maker could decide to exclude the partner’s current income from the means test because of this.