We welcome the opportunity to make a submission to the committee and we welcome the committee's focus on this important issue. Family law is the largest area of queries on our information telephone line and in our legal advice clinics. The clinics, where volunteer lawyers provide legal advice, operate in 67 locations around the country. As part of our public interest law project, McCann FitzGerald Solicitors has partnered with Women's Aid and provides advocacy for women who are representing themselves in family law matters.
For 50 years we have been promoting access to justice, which obviously includes access to legal aid. Importantly, it also includes access to the courts and effective remedies. What happens in the court is vital to access to justice. Access to justice is about democracy, as provisions in legislation the Oireachtas has enacted, such as the important provisions in the new Domestic Violence Act that we welcomed, will only be effective if they can be enforced. Access to justice is also fundamental to the rule of law as it enables State bodies that are involved in family law, such as Tusla and the HSE, to be held to account. Fundamentally, however, it is about social inclusion. People who present at FLAC clinics or in our casework often have a number of legal issues ongoing at the same time so it is important not to view family law and the family courts in isolation. Family law problems are often accompanied by debt, unemployment and housing problems, and homelessness makes these issues far worse. Solving an issue such as housing or homelessness may have a positive impact on family law matters, such as enabling access or custody to take place. Addressing these issues together will increase social inclusion.
The Legal Aid Board and the Courts Service are public, statutory bodies. The positive duty which is set out in section 42 of the Irish Human Rights and Equality Commission Act 2014 imposes an obligation on both the Legal Aid Board and the Courts Service to promote equality and human rights. What we mean in this context is the human right of access to legal aid and complying with the provisions in the Equal Status Acts which require the Courts Service to be accessible and to ensure there is no discrimination on any of the grounds in that legislation. It also requires the reasonable accommodation of people with disabilities. The State's system of legal aid and advice is administered by the Legal Aid Board. We believe the Legal Aid Board and the Courts Service must be regarded and treated as fundamental to the administration of justice and the rule of law and must be resourced appropriately. The budget of the Courts Service was hit very badly during the recession and that must be addressed.
We welcome the committee's focus on this issue but we invite it to cast its forensic eye in particular on the issue of legal aid. Problems with the provision of legal aid include problems with delays, the means test, the contributions, the waiver, the issuing of certificates and the areas of law excluded. We also submit that there is a lack of transparency about the reasons for refusal of legal aid and the amount of financial contributions collected. I pay tribute to the work of the staff of the Legal Aid Board, who face huge demands for their services. Nothing we say here should be seen as a critique of their work. It is somewhat like the health services in that the service from the staff is excellent but the problems arise from the structures and resources.
With regard to delays in law centres, there is a waiting time of ten months and more for a first consultation in the Blanchardstown and Finglas law centre, 33 weeks in the Cork law centre and 32 weeks in Tralee. The means test has not been amended since 2008. We understand that the Department is open to reviewing the means test and that the Legal Aid Board has submitted recommendations for a review in this regard. To qualify for legal aid a person must have a disposable income of less than €18,000 per year, as well as disposable capital of less than €100,000. The family home is not considered as means when assessing capital. There are also allowances which have not been reviewed since 2008. One of the allowances includes €8,000 per year for accommodation costs. Given the current accommodation costs per month, that is far below what one would pay for private rented accommodation or a mortgage property. There is also an allowance for childcare expenses of up to €6,000 per annum whereas the average childcare costs amount to €1,000 per month. The means test must be poverty proofed and reviewed on an ongoing basis.
We also argue that the Legal Aid Board should have discretion to provide legal aid in certain circumstances where people have failed the means test. We have seen a case where a hospital was intending to make an application to the High Court in respect of the medical care of a terminally ill child. The parents failed to meet the means test. They had no money because they had been out of work for a number of months to take care of the child, but they failed to get legal aid in that instance. In cases of exceptional importance where people fail the means test the Legal Aid Board should have a residual discretion.
As regards financial contributions, one would think that somebody on an income of €18,000 or less would not have to make a financial contribution towards legal aid but, unlike the medical card, legal aid is not free. The minimum contribution for legal aid is €130. That might not appear to be much but it is very significant if one is in receipt of a social welfare payment. It exceeds the reduced rate of social welfare payments that are paid to a person under 26 years of age. We have heard of contributions of thousands of euro being made by people who are in receipt of legal aid if the aid relates to the sale of the family home. It is possible to get a waiver if the contribution might cause hardship but that waiver provision is not well known and is not advertised.
We campaigned to have the financial contribution removed for victims of domestic violence and we were successful in that campaign but a person still has to make a financial contribution when they go back to the courts in relation to access, custody or maintenance.
There appears to be an unofficial rule in operation that a person will only get the maximum of two legal certificates per year. This does not make sense on any level. Apart from the impact on the parties and the families having to make repeated trips to the court over extended periods, it would appear to be a far better use of court time and legal aid staff to have all applications dealt with from the outset.
There is a lack of clarity as to whether legal aid is available in housing cases, which is closely related to issues which arise in family law cases. FLAC submitted an amendment to the Department of Justice and Equality which, if enacted, would ensure that legal aid was available to anyone facing eviction from the family home. This would include people in long-term mortgage arrears or people facing evictions from local authority housing.
We need more transparency from the Legal Aid Board on the use of the waiver, the level of contributions that are collected, the number of refusals of applications for legal aid and the reasons that accompany those refusals.
Ms Lord will deal briefly with the issue of access to the courts.