Wednesday, 18 December 2019

Questions (196)

Catherine Connolly

Question:

196. Deputy Catherine Connolly asked the Minister for Justice and Equality the number of persons that applied and qualified for civil legal aid pursuant to section 28(9)(c)(iii) of the Civil Legal Aid Act 1995; and if he will make a statement on the matter. [53448/19]

View answer

Written answers (Question to Justice)

The Legal Aid Board provides legal advice and aid under the Civil Legal Aid Act 1995 and the Civil Legal Aid Regulations 1996-2017. The Board delivers these services through directly employed solicitors in its network of law centres around the country and private solicitors from its private practitioner panels.

There is no requirement for an applicant to cite individual sections of the Civil Legal Aid Act 1995 when making an application for legal services. A solicitor who makes an application for a legal aid certificate on an applicant’s behalf will consider any applicable law including the provisions of the Civil Legal Aid Act 1995. When the Board grants legal aid it satisfies itself that the application meets all of the relevant criteria under the Act and Regulations. However it does not record a list of applicable criteria relating to each individual successful application. For this reason, the Legal Aid Board is not in a position to provide the specific information the Deputy seeks.

However, the Board informs me that, in practice, the number of applications made on a yearly basis involving facts in which the section referred to is invoked is small compared to the total number of applications.

By way of background

Section 28(9)(a)(ii) of the Civil Legal Aid Act 1995 provides as follows:

“(9) ( a ) Subject to any order made under subsection (10) and to the other provisions of this subsection, legal aid shall not be granted by the Board in respect of any of the following matters (referred to in this Act as "designated matters")…. disputes concerning rights and interests in or over land;

Effectively section 28(9)(a) provides for a list of matters (referred to as designated matters) that are not within the scope of civil legal aid and it is ultra vires the Act for the Board to grant legal aid in any such matter. However, section 28(9)(c) provides for a list of exemptions to the designated matters set out earlier in the Act. Section 28(9)(c)(iii) provides that:

“Notwithstanding the provisions of paragraph (a) and subject to the other provisions of this Act, legal aid may be granted… where a subject matter of the dispute is the applicant's home (or what would be the applicant's home but for the dispute) and the Board considers that the applicant

(I) suffers from an infirmity of mind or body due to old age or to other circumstances, or

(II) may have been subjected to duress, undue influence or fraud in the matter, and that a refusal to grant legal aid would cause hardship to the applicant;”

A number of criteria must be met for a matter to fall into this exception . Firstly, the subject matter of the dispute must be the applicant’s home or what would be the applicant’s home but for the dispute. Secondly, the Board must consider that the applicant either suffers from an infirmity of body or mind due to old age or to other circumstances, or that the applicant may have been subjected to duress, undue influence, or fraud in the matter. Thirdly, the Board must consider that a refusal to grant legal aid would cause hardship to the applicant.