Monaghan -v- Legal Aid Board and Ors High CourtJudgment was given by Mr Justice Edwards on October 10th, 2008
Judgment
The Legal Aid Board correctly interpreted Section 29 (2) of the Legal Aid Act 1995, in concluding that it did not have the power to grant legal aid to a person earning more than €18,000, the limit laid down by Regulation 13.
Background
The case was brought by Marie Monaghan, who had been refused legal aid on the grounds that her income exceeded the limit laid down by the board.
Ms Monaghan, a shop assistant for 33 years, lives with her sister Carol and Carol's son, who suffers from a mental disability, in a rented house on Oxmantown Road, Dublin, held under a protected letting inherited from their parents and, before that, their grandparents. On the death of the parents, the rent-book was transferred into the name of Carol Monaghan, who is not working outside the home but is caring full-time for her son.
On October 4th, 2006, Carol received a notice to quit. The representative of the landlord explained that she might be entitled to a new tenancy, but she would need to be legally represented and take a case to the Circuit Court. Both the applicant and her sister Carol went to Brunswick Law Centre, run by the Legal Aid Board, to seek legal aid. She was told to fill in forms, during which she realised her application for legal aid would not be decided before the Notice to Quit was due to expire.
She then went to the constituency office of her local TD, Bertie Ahern, who wrote to Flac, the voluntary legal rights organisation, on behalf of the two sisters. Normally Flac does not provide legal representation, but does provide advice. Flac assisted them in ensuring they were not evicted pending the Circuit Court proceedings, where they were seeking a new tenancy.
Marie Monaghan continued with her application for legal aid so that she would be represented in these proceedings. In February 2007 she was informed that her application was being refused on the grounds that she exceeded the means test by €217 per annum. Separately, her sister was granted legal aid and assigned a solicitor. However, because Marie Monaghan's name was not on the rent-book, she felt she required representation when the question of the new tenancy came to court.
Flac assisted the applicant in appealing the refusal of legal aid to the appeals committee of the Legal Aid Board. There were two grounds of appeal: that the board had failed to allow a dependent relative allowance for the applicant's nephew, whom she was supporting, along with her sister, and that the board had a residual discretion to grant legal aid, notwithstanding the means test.
The appeals board informed the applicant in May 2007 that it had upheld the decision of the board. Flac asked for the reasons for the refusal, and the legal services section of the Legal Aid Board responded, quoting the Civil Legal Aid Regulations, which state that an applicant whose disposable income exceeds €18,000 per annum shall not be eligible for legal aid.
Subsequent inquiries by Flac did not produce any detailed grounds for the refusal, particularly any information on how her dependent relative was treated, and eventually Flac started judicial review proceedings on behalf of the applicant, seeking to quash the refusal.
Leave was granted, and the day before the return date for the judicial review the Legal Aid Board wrote to Flac stating that it had reviewed Ms Monaghan's application and discovered there were "procedural shortcomings in terms of the manner in which the application was processed". It was therefore quashing the decision of May 2007 and would discharge her legal costs to date.
The applicant sought an adjournment of her judicial review proceedings and asked that her application be reconsidered during the adjournment. On December 21st, 2007, she received a letter from the LAB stating that her application had been refused on the grounds that she did not satisfy the financial eligibility criteria in Section 29 of the Civil Legal Aid Act 1995, as her disposable income was calculated at €18,536.92, and this exceeded the €18,000 limit. It stated that the board had no discretion to provide legal aid under the Act.
Flac sought further information, and the board responded, including a reference to the fact that Carol Monaghan had been in receipt of the One Parent Family Payment since November 2006.
Flac lodged an appeal against this decision, which was turned down by the appeal committee.
The applicant then decided to press ahead with the judicial review proceedings.
Decision
The case concerned whether the board had erred in its interpretation of the 1995 Act in relation to the definition of dependants, and in relation to the board's position that it had no power to grant legal aid where a person fails the means test.
Mr Justice Edwards said that all the parties had provided submissions on the question of statutory interpretation, and he had found that of the Legal Aid Board particularly clear.
Having outlined the rules of statutory interpretation as elaborated in the submissions, Mr Justice Edwards referred to Section 5 of the Interpretation Act 2005, which created an exception to the general rule of literal interpretation where a literal interpretation would defeat the intention of the Oireachtas.
He said that the Legal Aid Board is a statutory body and exercises its functions in accordance with the 1995 Act and the associated regulations. Accordingly, it may only provide legal aid in accordance with the provisions of the Act and the regulations.
The Act laid down a number of requirements that must be met where legal aid is sought.
In this case, an issue arose in relation to the correct interpretation of Regulation 16, which governs the grant of dependent allowances, and Regulation 13, which deals with financial eligibility.
Under Regulation 16, if a dependent relative has an independent means of support, the board does not have discretion to grant the applicant a dependent allowance. The applicant's sister and nephew had independent means of support, the One Parent Family Payment, from November 2nd, 2006.
Section 29 of the Act provided for legal aid "in accordance with the regulations" and there were no provisions in the regulations for the grant of legal aid without reference to financial resources, and providing any guidance as to when and how any discretion of the board on granting legal aid should be exercised.
He agreed with the submissions made on behalf of the board that the board did not have discretion to grant legal aid without reference to the applicant's financial resources.
Accordingly, he dismissed the applicant's claims, and said he would hear submissions on costs and other matters later.
The full judgment is on www.courts.ie
Paul McDermott SC, Siobhán Phelan BL, instructed by Flac, for the applicant; Declan McGrath BL for the Legal Aid Board.