A group of 19 social justice organisations* working in the areas of homelessness, housing, disability, health, unemployment, family, penal reform, older people and children in care have called for substantial reform of the State’s Civil Legal Aid Scheme.
The Scheme, which is administered by the Legal Aid Board and provides non-criminal legal aid and advice to people of limited means, is currently under review by the Department of Justice. The review commenced last year and will continue until June 2023.
In their submission (linked here), led by Community Law & Mediation, the organisations highlight the barriers that for too long have prevented people on low incomes, marginalised groups and others from accessing justice. They call for urgent adjustments to the financial means test to access legal aid and expansion of the scheme to cover all areas of law, including employment, equality, housing, environmental matters, social welfare, and children’s rights.
The right of access to justice
The right of access to justice is accepted as a constitutional principle and a right under the European Convention on Human Rights. Without it, people are unable to have their voice heard, exercise their rights, challenge discrimination, or hold decision-makers accountable. It is a basic tenet of a functioning, democratic society and is critical to social inclusion.
Ireland’s system of civil legal aid dates back to the Airey case of 1978, when the European Court of Human Rights found that Ireland had violated the rights of Josie Airey, who sought a high court separation order from her abusive husband, by failing to provide her with legal aid.
The outcome of this case saw the introduction of the State’s first ever Civil Legal Aid Scheme. However, almost 45 years on, the Scheme is severely out of touch with the reality of the cost of living and significant gaps remain, which leave many people unable to access vital legal supports.
Below are some of the key observations and recommendations for reform of the Scheme by Community Law & Mediation and partner organisations:
How appropriate are the current eligibility thresholds to qualify for civil legal aid and advice?
Currently, to qualify for civil legal aid and advice, a person’s disposable income must be below €18,000. While there are certain allowances against income, the maximum allowance for rent/mortgage payments is €8,000 and child care facilities is €6,000 per child. These thresholds were set in 2006 and are now out of touch with the reality of housing and childcare costs, particularly in larger cities, and further exacerbated by the current cost-of-living crisis. As a result, many people who cannot afford to pay for a solicitor are also finding themselves excluded from legal aid.
Taking the rate of inflation, the national minimum wage and the living wage into consideration, Social Justice Ireland has recommended a series of increases to the disposable income threshold, the childcare allowance and the accommodation allowance. These proposals are (linked here). When considering eligibility thresholds for legal aid and advice, attention should also be paid to the costs being shouldered by those with disabilities or serious illness.
Certain types of cases are so fundamental to the rights of an individual that legal aid should be provided without a financial eligibility test - for example, in discrimination or family law cases involving domestic violence. Strategic cases taken in the public interest should also be eligible for a waiver of the financial eligibility test.
What areas of law should the Civil Legal Aid Scheme cover?
The majority (79.1%) of cases that received legal aid last year were in the area of general family law and divorce/separation with only 20.9% relating to other civil matters. This statistic is not reflective of the need for advice, support and representation in areas such as employment, equality, housing, social welfare, children’s law and the environment.
It is not currently possible to access legal aid for employment or equality cases before quasi-judicial tribunals and bodies, including the Workplace Relations Commission (WRC). This is concerning because employers, service-providers, or public bodies often have legal representation during these cases, while those challenging discrimination in the workplace or in accessing services have to navigate complex employment and equality laws without legal assistance.
The records of the WRC show that very few equal pay claims are being brought despite the fact we still have a concerning gender pay gap. Similarly, there are very few employment equality and equal status cases taken under the Traveller Community ground, despite the disproportionate discrimination experienced by Travellers. These cases are complex and the absence of legal aid creates a huge barrier to achieving equality in this area.
Legal aid should be available for employment, employment equality and equal status claims before the WRC.
Similarly, legal aid is not available for appeals before the Social Welfare Appeals Office (SWAO), despite the fact that social welfare appeals concern complex areas of law and often involve aspects of EU law. Social welfare entitlements are a central piece of both protection against poverty and employment protection in the State. Those experiencing unemployment and those who cannot work or can only work part-time due to illness, disability, or caring responsibilities rely on these essential supports.
Early stage legal advice in social welfare appeals and legal representation before the SWAO should be available, particularly where an oral hearing is taking place or a written submission is required, or where the Department of Social Protection asserts an overpayment of social welfare. Collaboration with the advocacy services supporting people in social welfare matters is vital and these services should be properly funded.
It is not currently possible to access legal aid in housing cases, where a person may be facing eviction or where they are experiencing discrimination on grounds of housing assistance. Legal advice and representation should be available for issues relating to social housing supports, emergency accommodation and disputes before quasi-judicial bodies, including the Residential Tenancies Board (RTB) and the WRC.
In relation to children, it is currently unclear how the services of the Legal Aid Board can be availed of by those under 18 years of age or on their behalf. Access to justice for children and young people should not be dependent on the means or support of their guardians. A policy should be developed that accords with the COE Guidelines on Child-Friendly Justice on how children can access the services of the Legal Aid Board.
Regarding environmental matters, there are many environmental protections and obligations contained in national and EU law but without access to justice in this area, such laws are without enforcement, implementation and accountability - something which is a key feature of environmental injustice. Legal aid should be available for individuals and environmental NGOs seeking to challenge environmental decisions; the restriction on civil legal aid being granted in public interest and multi-party actions should be removed.
How should civil legal aid services be delivered?
It is recommended that the Civil Legal Aid Scheme is restructured in line with the community law centre model.
This model has a number of important characteristics. Services are free of charge, making them as accessible as possible; community education - creating an awareness of rights and the law - is a critical part of the work; and a focus on law reform ensures that the issues being raised in the services inform and influence change in policy and legislation.
Community law centres work to reduce and remove barriers to the law on the basis that all people should be able to access basic legal information and advice regardless of their income and background. They work to identify and unlock the legalities, regulations, policies, and procedures that manifest as barriers and obstacles to a fair and better life for all individuals in that community.
* Age Action, AsIAm, Ballymun Community Law Centre, Community Law & Mediation, the Disability Federation of Ireland, EPIC, Inclusion Ireland, the Irish Cancer Society, the Irish Penal Reform Trust, the Irish National Organisation of the Unemployed, the Jesuit Centre for Faith and Justice, Mental Health Reform, Northside Partnership, Novas, One Family, Robert Emmet CDP, Society of St Vincent de Paul, Threshold and Treoir.