Legal aid provides funding for people who need a lawyer but cannot not afford one. The funding is available for civil disputes in some circumstances, although grants may be on the condition that you pay a user charge and/or repay some or all of the funding later on. The governing law is the Legal Services Act 2011, particularly sections 7, 10, 11 and 12, and also the Legal Services Regulations 2011.
Legal aid may be available for disputes in the general courts such as the District and High Court, as well as specialist forums including the Employment Relations Authority, Employment Court and the Tenancy Tribunal. However, it is not available for cases in the Disputes Tribunal or the Motor Vehicle Disputes Tribunal. Nor is it available to companies or groups except in some limited circumstances.
The Ministry of Justice administers the legal aid system. It decides whether to offer legal aid to people based on factors such as income, assets, merits of the court case and any outstanding legal aid debts from any previous cases. The provisions quoted in this part are not everything that may determine a legal aid application but do provide something of a broad framework that may be sufficient in many cases.
Section 10 of the Legal Services Act 2011 provides that legal aid may be granted to natural persons subject to means testing their income and ‘disposable capital’. The maximum levels of income and disposable capital are set out in the Legal Services Regulations 2011.
Regulation 5 provides:
(1) The maximum levels of income for the purposes of determining an applicant’s eligibility for legal aid in respect of a civil matter are –
(a) $22,366 per year for a single applicant:
(b) $35,420 per year for an applicant with –
(i) a spouse or partner; or
(ii) 1 dependent child:
(c) $50,934 per year for an applicant with –
(i) a spouse or partner, and 1 dependent child; or
(ii) 2 dependent children:
(d) $57,880 per year for an applicant with –
(i) a spouse or partner, and 2 dependent children; or
(ii) 3 dependent children:
(e) $64,678 per year for an applicant with –
(i) a spouse or partner, and 3 dependent children; or
(ii) 4 dependent children:
(f) $72,302 per year for an applicant with –
(i) a spouse or partner, and 4 dependent children; or
(ii) 5 dependent children.
(2) If an applicant has more than 5 dependent children, or has a spouse or partner and more than 4 dependent children, the maximum level of income for that applicant is calculated by adding to the amount specified in subclause 1(f) a further $6,689 for each additional child.
Regulation 6 provides:
(1) The maximum level of disposable capital for the purposes of determining an applicant’s eligibility for legal aid in respect of a civil matter is $3,500.
(2) If the applicant has a spouse or partner, or 1 or more dependent children, the maximum level of disposable capital for that applicant is calculated byadding an allowance of $1,500 to the amount specified in subclause (1).
‘Capital’ is defined in Schedule 1 to the Legal Services Act 2011:
… capital, in relation to an applicant for legal aid, means that person’s total assets after deducting –
(a) the amount of any debts secured against those assets; and
(b) the amount of the actual debts of the person, other than those that are secured.
Schedule 1 to the Legal Services Act 2011 also contains an extensive definition of ‘disposable capital’ as well as qualifications to that definition relating to the resources of a spouse or partner, parents of a minor and Maori land. Those qualifications to one side, however, clause 3(1) of Schedule 1 provides:
In relation to an application from legal aid, disposable capital means that person’s total assets after deducting the amount of any debts secured against those assets and after deducting, –
(a) if the person has an interest in a home, the amount of equity in the property set by regulations:
(b) if the person has an interest in a motor vehicle used principally as that person’s means of transport for domestic purposes, the amount of the value of that interest:
(c) the amount of the value of the person’s household furniture, household appliances, personal clothing, and tools of trade:
(d) the amount of the contingent liabilities of the person that may mature within the next 6 months:
(e) the amount of the actual debts of the person, other than those that are secured and have been taken into account in determining the amount of the person’s assets:
(f) the value of the subject matter of the proceedings unless the Commissioner determines a proportion of that value that should be included in the assessment of the person’s total assets:
(g) the value of any property that is the subject of a restraining order under the Criminal Proceeds (Recovery) Act 2009.
Legal aid may still be granted in ‘special circumstances’ even if your income and disposable capital are greater than the maximum limits. That is provided for at section 10(2) of the Legal Services Act 2011. Factors taken into account include:
(a) the likely cost of the proceeding to the applicant; and
(b) the applicant’s ability to fund the proceedings if legal aid is not granted.
Income and assets aside, there are other factors that are also relevant to a legal aid application. Section 10 of the Legal Services Act, particularly subsections (4) to (6), indicate that those other factors include:
1. whether you have reasonable grounds for the claim or defence you propose to make;
2. the prospects of you succeeding in your claim or defence;
3. whether the costs involved in your case would outweigh the benefit you might get from winning;
4. whether there is some reason that makes it unreasonable or undesirable for you to receive legal aid for your case; and
5. whether you are up to date with any repayments toward any previous legal aid debts.
A lawyer could help you to assess whether you might qualify for legal aid and help you to make a legal aid application. The Ministry of Justice may also be able to assist. Their contact phone number for legal aid enquiries is 0800 2 LEGAL AID (0800 253 425).