Different criteria should not apply for civil legal aid

There is a need to reform the civil legal aid system to give it the flexibility that exists in criminal cases

Noeline Blackwell: “Many a poor employee has been forced to represent themselves in complex legal matters”. Photograph: Dara Mac Dónaill

Noeline Blackwell: “Many a poor employee has been forced to represent themselves in complex legal matters”. Photograph: Dara Mac Dónaill

Mon, Jun 30, 2014, 01:10

The IMF’s departing representative in Ireland, Peter Breuer, pointed out last Monday, in an address to the Institute of International and European Affairs, that mortgage arrears remain one of the biggest issues facing the Irish State.

Some 27 per cent of the loan books of Irish banks remain in the non-performing category. Lenders have taken possession of hundreds of residential properties so far this year, while tens of thousands of people remain deeply rooted in mortgage arrears.

What this means is that a sizeable proportion of the State’s population – and predominantly those from poorer socio-economic backgrounds – are involved in civil legal disputes with banks and lenders that Free Legal Advice Centre director general Noeline Blackwell described last week as potentially having “grave consequences for a person’s welfare or livelihood”.

Ms Blackwell was speaking at the annual conference of the Legal Aid Board, the body responsible for the provision of free legal aid in civil cases.

She said the board’s “totally rigid means test” for the granting of free legal aid in civil cases compared with the State’s more favourable “discretionary” policy in criminal cases was a key human rights issue.

“In a criminal charge the right to legal aid is invoked when a person cannot afford to pay for their own defence in circumstances where there is a risk of imprisonment but also where there are grave consequences to a person’s welfare or livelihood,” she said.

“Civil legal aid uses very different criteria. The result is that there are many issues which will have grave consequences for a person’s welfare or livelihood but which will not attract a right to legal advice, assistance and representation if necessary.

“A person will have to meet the totally rigid means test. They will have to show that the matter is within the Legal Aid Board’s mandate. The grave matter of the guardianship of children or the right of children to safety in their home will be covered but, except in very limited circumstances, the right of representation in eviction proceedings where the child will be left without a home will not be covered.”

Ms Blackwell said most people would agree that repossession of a family home or eviction of a family from their home were actions that have grave consequences for a person’s and a family’s welfare and livelihood.

“Each of these families is dealing with something with enormous consequences for their welfare, livelihoods and reputations.

“Each of them is facing into once-in-a-lifetime negotiations to preserve their homes or to reduce debt to a manageable level.”

Tribunals

In her address Ms Blackwell said there was a “total lack of any system at all” for legal representation at tribunals, where poor people “quite regularly” have decisions made against them that “affect their welfare and livelihood in the most fundamental ways”, such as citizens attending social welfare appeals tribunals or employment appeals tribunals.

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