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Column: Making the poorest pay more is no way to cut waiting lists for legal aid

Reforms announced yesterday in the civil legal aid scheme, including increases in the minimum contributions for applicants, may mean that people who need help to access justice will be excluded, writes Yvonne O’Sullivan.

Yvonne O'Sullivan

CIVIL LEGAL AID means legal representation provided by a state-funded body called the Legal Aid Board. If you have a low income or rely on social welfare and you need help with a civil legal matter, such as a family law problem, you can seek advice and, where needed, representation by a solicitor.

While it is subsidised, this help is not free – there is a strict means test and if you qualify, a sliding scale of fees are charged depending on your income, with a minimum floor. (If you need help with a criminal law matter, there is a separate scheme administered directly through the courts at the judge’s discretion; if you are granted it, you will receive free legal aid with your case. However the Board will eventually take responsibility for criminal legal aid and administers a few smaller schemes already.)

This week, the Minister for Justice, Equality and Defence, Alan Shatter TD, signed into law several changes to the cost of civil legal aid. As an independent legal rights body which has long campaigned for better access to justice for the public, FLAC (Free Legal Advice Centres) welcomes the decision to abolish legal aid fees for parents involved in childcare cases against the HSE. However, FLAC has concerns about how the new measures will impact on a person’s basic right to access justice, both directly and indirectly.

Finding the money will be difficult for many

Finding the money to pay the steep increase in the minimum fee for civil legal aid – up from €50 to €130 – will be very difficult for many; bear in mind that only those who have low incomes or are in receipt of social welfare payments can qualify for civil legal aid in the first place.

Indeed this €130 is just the minimum fee, to be paid to the Legal Aid Board by a fraction of qualified applicants. For many others an additional contribution applies, depending on how much disposable income you have over €11,500 and under the threshold of €18,000. Thus legal fees could reach almost €2,000 for some individuals, which will definitely strain most people’s finances today.

The cut in the threshold limit for capital income from €320,000 to €100,000 could mean that those with assets valued above €100,000 but who rely on that asset for their income, such as small farmers or tradespersons, will be excluded.

Will people try to represent themselves?

So where will people turn if they are excluded from the state-sponsored civil legal aid system but cannot afford private legal assistance? FLAC fears the courts could become flooded with people representing themselves, a prospect facing the UK legal system at present following drastic cuts to its legal aid budget. This would worsen the existing backlogs in the courts, impacting on many other people trying to navigate the legal system.

In his press release, Minister Shatter referred to provisions to waive legal aid contributions that are already in place where people face “financial hardship”. A higher minimum legal aid fee will undoubtedly force more people to seek waivers, which would thwart the result sought by the Minister of increasing the Legal Aid Board’s funding by €700,000 per annum. Certainly if people have difficulty in paying their now higher contributions in the lump sum usually demanded, the desired income will likely not be forthcoming.

Not only this, but securing a waiver based on “financial hardship” is at the discretion of the Board, as there is no definition in primary legislation as to what constitutes “hardship”. This lack of clarity means even the poorest applicant has no guarantee that he or she can get help.

Overstretched system

The Legal Aid Board is doing its best with limited funding and a very dedicated staff working under increasing demand. This overstretched system simply cannot offer an effective remedy and access to justice to those who deserve and need it. FLAC is concerned that the new changes will leave increasing numbers of people outside the civil legal aid system.

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While Minister Shatter recognises the core role of the Legal Aid Board and, to his credit, has not cut its funding in the drastic way of previous Ministers, he has not addressed exactly how the legal aid waiting times are going to be tackled. People are waiting up to 18 months for a first appointment with a Board solicitor.

Ultimately, it looks like more and more people will have to rely on limited, first-stop voluntary services like FLAC’s countrywide advice centres and its telephone information line.

Yvonne O’Sullivan is Advocacy and Policy Officer with FLAC. For information on FLAC’s services and on civil legal aid, visit the website.

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Yvonne O'Sullivan

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