Raise legal-aid financial thresholds – report
A review of the Civil Legal Aid Scheme has recommended the establishment of a new framework for civil legal aid, which would include new services, as well as the current system delivered by the Legal Aid Board (LAB).
The review, published by the Government yesterday (24 July), says that a new legal-aid oversight body should be set up to ensure that the new system meets the legal needs of the Irish public.
The review group, headed by former Chief Justice Frank Clarke, backs an expansion of the scheme and an “immediate” increase in the financial thresholds for eligibility.
As consensus could not be reached on all issues, and reports have both been published.
The Law Society has welcomed the publication of the review – the first since the scheme was set up in 1979.
Minister for Justice Jim O’Callaghan said that the reports contained short-term issues that required attention and long-term recommendations that needed further consideration and engagement.
“I will now give consideration to the recommendations with my officials, and I will bring proposals for reform to government in due course,” he added.
Triage process
The report states that the new support system should cover more than the legal-representation or legal-advice services currently on offer and should include basic services such as:
- Advocacy: Representing a user’s needs and issues involving a legal component to a third party, usually a State body,
- Legal or administrative help, such as assistance with initial correspondence,
- Basic legal advice – a short session per user, and
- Mediation services "in all cases where it is appropriate”.
The report says that a triage process will be crucial to ensuring that people can easily access the service they need and recommends the introduction of a new role of triage officer.
Based in a local LAB or independent law centre, or Citizens Information Centre, these officers would triage people’s problems, identify the legal issue, and direct them to the most appropriate service.
While the report acknowledges that this approach will require additional resources, it argues that it could lead to better outcomes for people if they can resolve their issues earlier, more quickly, and at a lower cost.
Quasi-judicial bodies
The review notes that the current scheme does not provide for legal representation before quasi-judicial fora, such as the Labour Court, the Workplace Relations Commission (WRC), the Social Welfare Appeals Tribunal (SWAT), or the Residential Tenancies Board (RTB).
It also notes, however, “an increase in the complexity of cases and the associated law in some areas, and the use of legal representation by some parties appearing at these fora”.
The report says that prohibiting access to cases being heard in these bodies “is not in line with the majority of the review group’s vision, nor is it compatible with EU law”.
It recommends that, as a first step, the current scheme should be expanded in a manner that ensures that legal representation and substantive legal advice is available where required based on:
- The complexity of the case, or
- Where a legal requirement to do so arises.
Call for ‘structural review’ of thresholds
The review group says that the proportion of the population eligible for legal aid has been “greatly reduced” since 2006, when eligibility thresholds were last updated.
While it recommends immediate increases, it says that the level of data available to the group and the complex nature of the analysis required meant that it could not comprehensively assess the current means test in greater detail.
It urges the Department of Justice to undertake “a full structural review” of financial eligibility for the scheme.
In the meantime, the group backs an increase in the available income threshold from €18,000 to €23,500 “as soon as possible”. It also recommends increases in spousal, dependaent, and childcare allowances by a similar multiplier.
Most of the group recommends that the figure used to calculate the current income portion of a contribution is raised from €11,500 to €14,500 and that users with available income of less than €14,500 should pay no contribution.
A minority, however, argues that contributions should be tapered throughout the income distribution to effectively target available support, with measures to avoid hardship where necessary.
The group unanimously recommends, however, that a review of these thresholds should be conducted at least once every three years.
Legal merits
Currently, non-financial eligibility for civil legal aid includes consideration of the case, rather than the user.
While recognising the importance of such criteria in targeting support, the report recommends the development of a new legal-merits test that considers the user’s circumstances.
“Not all cases should be about winning, but rather about having the user’s voice heard and the importance of a personal sense of justice,” it states.
Exceptional circumstances
There were differences among the group in relation to the provision of support in exceptional circumstances for people who do not meet the financial-eligibility criteria for legal aid.
A majority of the group believes that the new support system should feature “a rules-based approach to applying discretion to eligibility decision-making".
A minority, however, argues that such a proposal would introduce “significant inequity” into the system for users – “in particular, in how a decision would be made for one user over another and how this could be justified from an equity standpoint”.
LAB capacity
The report also urges the Department of Justice to carry out “an immediate review” of the LAB’s capacity to administer the current scheme.
“This review should examine the Legal Aid Board’s ability to recruit and retain in-house solicitors and sufficient external expertise,” it states, adding that the future framework envisages an expanded role for the board.
Noting that the delivery of services envisaged by the group will depend on the co-operation of private practitioners, the report says that it will be “crucial” that the level of fees paid to solicitors, barristers, and experts are “such as to enable the current scheme and future advanced intervention services under the new system to operate”.
It states that the schedule of fees paid by the LAB to private legal professionals for District Court family-law cases has not changed since 2012, having been reduced twice from the amounts set in 2008.
The minority report, backed by Eilis Barry of FLAC and Professor Thomas O’Malley SC, describes the proposed increases in the eligibility threshold as “inadequate” and argues that the majority report “does not sufficiently reflect that the system of public legal assistance is in crisis”.
‘Fundamental shortcomings’
President of the Law Society Eamon Harrington described the availability of civil legal aid as “a core tenet of a functioning, democratic society”.
“The scope, financing, and administration of civil legal aid requires urgent reform,” he added.
“The fundamental shortcomings inherent in the current civil legal-aid system include the limited scope of matters covered, the very narrow financial-eligibility criteria governing access to the scheme, and the low number of solicitors participating in the scheme.
“We are pleased to see the review published and will now examine the recommendations in detail,” he concluded.