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Legal Services Act 2011

Schedule 1: Definition of income and disposable capital

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"How Your Money and Assets Affect Your Legal Aid"

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When you apply for legal aid, your income and disposable capital are assessed. Your income is the total amount of money you earn in a year. It includes money from a job, benefits, and tax credits. Your disposable capital is the total value of your assets, like property and cars, after deducting debts. It does not include the value of your home, car, and some personal items. The Commissioner decides how much of your income and disposable capital to consider when assessing your eligibility for legal aid. If you are under 16, your parents' resources may be considered as part of your resources. But if you are living apart from your parents or they are not supporting you, their resources may not be included. There are also special rules for Māori land and interests in Māori land. The Commissioner may consider the income and disposable capital of your partner or spouse when assessing your eligibility for legal aid.

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View the original legislation for this page at https://legislation.govt.nz/act/public/1986/0120/latest/link.aspx?id=DLM3143019.

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1Definition of income and disposable capital Empowered by ss 4(1), 8(3)

1Definitions

  1. In this schedule, unless the context otherwise requires,—

    capital, in relation to an applicant for legal aid, means that person's total assets after deducting—

    1. the amount of any debts secured against those assets; and
      1. the amount of the actual debts of the person, other than those that are secured

        home means the person's principal place of residence

          partner means, in relation to a person, the person's civil union partner or de facto partner.

          2Meaning of income

          1. In relation to an applicant for legal aid, income—

          2. means the person's total gross income during the 12 months immediately before the application for legal aid, or during such other period of 12 months as the Commissioner considers appropriate in the circumstances; and
            1. has the meaning given to it in clauses 3 to 7 of Schedule 3 of the Social Security Act 2018; and
              1. includes a benefit as defined in Schedule 2 of the Social Security Act 2018 other than—
                1. an orphan’s benefit payable under section 43 of that Act; or
                  1. an unsupported child’s benefit payable under section 46 of that Act:
                    1. an emergency benefit under section 63 of that Act; or
                      1. an accommodation supplement under section 65 of that Act; or
                        1. a winter energy payment under section 72 of that Act; or
                          1. a child disability allowance payable under section 78 of that Act; or
                            1. a disability allowance payable under section 85 of that Act; or
                              1. temporary additional support under section 96 of that Act; and
                              2. excludes a special benefit continued under section 23 of the Social Security (Working for Families) Amendment Act 2004 (as that section is saved by clause 19 of Schedule 1 of the Social Security Act 2018); and
                                1. excludes any special assistance payable under a programme approved under section 100 or 101 of that Act; but
                                  1. includes any tax credit or amount received under subparts MA to MF and MZ of the Income Tax Act 2007 or subpart KD of the Income Tax Act 2004 or subpart KD of the Income Tax Act 1994 or Part 11A of the Income Tax Act 1976.

                                    1. Subclause (1) is subject to clauses 4 and 5.

                                    Notes
                                    • Schedule 1 clause 2(1)(b): replaced, on , by section 459 of the Social Security Act 2018 (2018 No 32).
                                    • Schedule 1 clause 2(1)(c): replaced, on , by section 459 of the Social Security Act 2018 (2018 No 32).
                                    • Schedule 1 clause 2(1)(ca): replaced, on , by section 459 of the Social Security Act 2018 (2018 No 32).
                                    • Schedule 1 clause 2(1)(d): replaced, on , by section 459 of the Social Security Act 2018 (2018 No 32).

                                    3Meaning of disposable capital

                                    1. In relation to an applicant for legal aid, disposable capital means that person's total assets after deducting the amount of any debts secured against those assets and after deducting,—

                                    2. if the person has an interest in a home, the amount of equity in the property set by regulations:
                                      1. 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:
                                        1. the amount of the value of the person's household furniture, household appliances, personal clothing, and tools of trade:
                                          1. the amount of the contingent liabilities of the person that may mature within the next 6 months:
                                            1. 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:
                                              1. 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:
                                                1. the value of any property that is the subject of a restraining order under the Criminal Proceeds (Recovery) Act 2009.

                                                  1. This clause is subject to clauses 4 and 5.

                                                  4Resources of spouse or partner, or of parents of minor

                                                  1. Any resources of a person's spouse or partner must be treated as that person's resources unless—

                                                  2. the person is living apart from his or her spouse or partner; or
                                                    1. the person and his or her spouse or partner have contrary interests in the matter to which the proceedings relate; or
                                                      1. regulations provide otherwise.

                                                        1. Subject to subclauses (3) and (5), any resources of the parents of a minor who is under 16 years of age must be treated as that minor's resources, unless the minor and either of his or her parents have contrary interests in the matter to which the proceedings relate.

                                                        2. Where an application for legal aid for a civil matter is made by or on behalf of a person under 16 years of age, the Commissioner may exclude from the applicant's resources the resources of a parent of the applicant if—

                                                        3. that parent is living apart from, or does not have responsibility for the day-to-day care of, the applicant; or
                                                          1. the applicant is supporting himself or herself without financial assistance from that parent.

                                                            1. Where an application for legal aid for a civil matter is made by a minor aged 16 years or over, the Commissioner may treat the resources of the following persons as resources of the applicant:

                                                            2. any person who, under any agreement or court order, is liable wholly or partially to maintain the applicant; or
                                                              1. any parent, foster parent, or step-parent with whom the applicant is living.

                                                                1. Where an application for legal aid for a civil matter is made by a minor, the Commissioner may include in his or her resources any sum paid or payable, under any agreement or court order, to any person for the purpose of maintaining the minor.

                                                                2. Without limiting the ways in which persons may have a contrary interest in a matter, person A and person B have a contrary interest in a matter if—

                                                                3. person A applies for or is granted legal aid in connection with proceedings against person B under the Family Violence Act 2018; and
                                                                  1. either—
                                                                    1. person A is a minor and person B is person A's parent; or
                                                                      1. person A is the spouse or partner of person B.

                                                                      Notes
                                                                      • Schedule 1 clause 4(6)(a): amended, on , by section 259(1) of the Family Violence Act 2018 (2018 No 46).

                                                                      5Resources relating to Māori land

                                                                      1. In this clause, applicant means—

                                                                      2. an applicant for legal aid for a civil matter; and
                                                                        1. every other person whose income or disposable capital has to be assessed for the purposes of deciding whether, and on what terms, legal aid should be granted under the application.

                                                                          1. The income of the applicant includes any rent derived from Māori land or interests in Māori land.

                                                                          2. The disposable capital of the applicant includes Māori land and any interests in Māori land unless—

                                                                          3. the application is made in respect of proceedings in the Waitangi Tribunal; or
                                                                            1. in the circumstances of the case, the Commissioner considers that it would be inequitable to include all or part of the land or interest.

                                                                              1. For the purposes of this clause, Māori land has the same meaning as in section 4 of Te Ture Whenua Maori Act 1993.

                                                                              2. This clause operates despite anything in clauses 2, 3, and 4, or anything in regulations.

                                                                              6Resources of representative, fiduciary, etc

                                                                              1. If an applicant for legal aid is concerned in the matter only in a representative, a fiduciary, or an official capacity,—

                                                                              2. the applicant's personal resources must not be taken into account when assessing income or disposable capital; but
                                                                                1. the Commissioner may have regard to the value of the property or estate, or the amount of the fund, out of which the applicant is entitled to be indemnified, and to the resources of the persons (if any) who are beneficially interested.