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Towns becoming ‘deserts’ for private family legal aid cases, says Law Society

Society urges radical expansion of civil legal aid to include aid for local authority tenants facing eviction

Some towns are becoming “deserts” for district court family law cases under the private civil legal aid scheme because pay rates for lawyers are too low, the Law Society of Ireland has warned.

Just one solicitor is prepared to take private legal aid cases in some towns, meaning the other party in the case has difficulty accessing a solicitor under the legal aid scheme, the society says.

The district court fees for a solicitor on the private scheme range from €339, plus VAT, for a child access application to €508, plus VAT, for an application concerning domestic violence and access and/or maintenance.

According to the society, the “commercial reality” is that opening a file and taking instructions from a client exceeds the higher of those two figures. The Legal Aid Board (LAB) does not compensate a solicitor for outlays such as post, fees for swearing court documents, travel, parking or sustenance, it adds.

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Adequate funding of the private scheme and legal aid for local authority tenants facing eviction and repossession proceedings are among the society’s proposals aimed at a radical expansion and reform of the civil legal aid scheme.

The proposals are contained in a detailed submission from the society, seen by The Irish Times, to the top-level civil legal aid review group as part of a consultation process. The review concerns civil legal aid only as the criminal legal aid scheme is a separate scheme.

Extending the legal aid scheme would not lead to any change unless there was a “substantial” increase in State funding of the LAB to support that, the society said.

The proposals by the solicitors’ representative body include legal aid for social welfare appeals and a reconsideration of the “blanket ban” on legal aid for defamation proceedings.

It favours a wider application of legal aid concerning applications under the new Assisted Decision-Making Capacity (ADMC) Act and wants legal aid extended to cases taken to the Workplace Relations Commission under employment, employment equality and equal status legislation.

In seeking legal aid for local authority tenants facing eviction and repossession proceedings, it notes private tenants are eligible for legal aid for disputes with landlords but local authority tenants are not.

Legal aid is largely excluded for mortgage repossession cases and exceptions are “quite narrowly defined”, it says. Of 2,396 possession cases examined by the Centre for Housing Law, Rights and Policy at NUI Galway, the home loan debtor had no representation in 70 per cent of cases and debtors represented themselves in 7 per cent of cases, it notes.

Although legal advice is available under the Abhaile scheme through a duty solicitor in courthouses where possession cases are listed, that solicitor does not act as the legal aid solicitor or defend the case for the borrowers, it says.

While civil legal aid is “theoretically available” for most types of civil law cases, the LAB’s limited resources mean applications for legal aid by, for example, a litigant involved in a personal injuries case, “would almost certainly be unsuccessful”, it says.

Almost 70 per cent – 11,022 – of the total cases handled by the LAB in 2021 related to family law, 1,953 to childcare and 3,425 in other civil legal aid matters.

While family and child cases are “incredibly important”, there is concern overemphasis on them has led to the exclusion of litigants “in other vital areas”, according to the society.

It believes the estimated 30 per cent of litigants representing themselves do so arising from financial considerations and lack of “meaningful access” to legal aid. Of 15,291 new applicants for legal aid in 2021, just 5,025 new cases were taken on by the LAB, reflecting the general trend since 2018, it says.

Advocating a new approach, the society says, instead of excluding certain types of civil proceedings, clear criteria should be drawn up to allow principled decisions to be taken around scope and eligibility for legal aid. Factors to be considered should include complexity of the case and the importance of what is at stake for the applicant.

Family law cases must be prioritised under any scheme, priority for domestic and gender-based violence cases and child protection matters should be maintained and cases under the ADMC Act should also be prioritised, it says.

It recommends ending the financial eligibility thresholds for legal aid and wants each citizen’s eligibility for income and capital considered individually with no disadvantage due to relationship status. Current eligibility thresholds are “inappropriate and outdated” and mean many people with low incomes are being denied access to justice, it says.

Financial eligibility criteria have not been substantially charged since 2006, it notes. Legal aid is not available for applicants with disposable income above €22,212 per annum or capital income exceeding €123,400. Monetary limits, it says, should be reset based on changes in the consumer price index and reviewed every three years and allowances should be made on location and other grounds.

Mary Carolan

Mary Carolan

Mary Carolan is the Legal Affairs Correspondent of the Irish Times