Seanad Éireann - Volume 112 - 01 May, 1986

Adjournment Matter. - Legal Aid.

[627] An Cathaoirleach: Senator McAuliffe-Ennis on the matter on the Adjournment — The operation of the means test in the Civil Legal Aid and Advice Scheme.

Mrs. McAuliffe-Ennis: I would like to thank you for allowing me time to discuss this matter this afternoon. I am aware, and undoubtedly the Minister is aware, that there are many problems relating to the civil legal aid and advice scheme. Those concerns will be more fully discussed here today, briefly indeed, and even more so in the context of the motion already tabled in the names of Senators McGuinness and Robinson. I have agreed to share this time, I might add, with Senator Robinson. I intend to deal with one aspect of the scheme and Senator Robinson will deal with other areas.

I wish to direct the spotlight on one aspect of the scheme which is causing major problems for literally hundreds of people, that is, the means test and the limits placed on income in order to qualify for civil legal aid under the scheme. This matter, as the Minister is well aware, will worsen should the proposed constitutional amendment succeed. In that context there is urgent need for attention. The scheme is intended to assist persons of little or modest means who may or may not be in a position to pay some contribution towards the cost of legal fees incurred but who would otherwise not have the ability to pay for private legal assistance in such areas as family problems, landlord and tenant problems, consumer protection, making a will, etc. This scheme, which makes the services of solicitors and if necessary barristers available, is vital to those who wish to assert their basic rights in a professional and competent manner. But because the means test ceiling of £3,500 disposable income has not been improved since February 1981, there are many who now find themselves ineligible and therefore [628] without proper representation in guarding their rights. I realise that some modifications were made to the means test in 1983. The reality is that the numbers being refused on the grounds of financial ineligibility are rising. In 1983, for example, 25.8 per cent of applicants were deemed ineligible for financial reasons. That figure increased to 35.7 per cent in 1984. Coupled with the fact that even those on social welfare payments — for example, deserted wives — are being deemed ineligible, it is obvious that the scheme now fails to cater for those of low means never mind those of modest means.

Now is the time urgently to review the situation and, indeed, for the future a system to keep it in line with real increases should be devised. The Minister, in being fully aware not only of this particular problem but of all the problems in the scheme, is undoubtedly sympathetic and will recognise the need for urgency and respond accordingly.

It is, for example, a matter of urgency for one particular person that I know whose rights are being downtrodden to say the least. She has a custody order in her favour. Her husband has removed the children from her care and because he does not comply fully with the maintenance order she has not the means to engage professional help. She is ineligible under the means test for civil legal aid, even though she has no personal income and is now in the horrendous situation that she cannot have a legal custody order enforced. In other words, the law is not being complied with. She is the victim of that breach and has no means of using the law to ensure that her legally defined rights in relation to her family are carried through.

The civil legal aid board themselves are aware that this specific area, the means test, is causing grave hardship and indeed are under increasing public pressure and criticism in that the necessity for these services is felt most acutely by the poorest section of the community. The board in their report show that 11,000 people availed of the scheme over the period 1983-1984. Indeed, one must congratulate [629] them and recognise the importance of that service to those 11,000 people. Equally, however, one must be aware that there are many more who will be unable to avail of this scheme and will therefore be in the most awful position of presenting themselves in court or perhaps taking matters into their own hands which they are not competent to deal with and by so doing may even make matters worse for themselves. The alternative is to live and to continue on in a country without any help to defend oneself against the system which for those in that position now works against them. I will hand over now to Senator Robinson.

Mrs. Robinson: I am glad to have the opportunity given me by Senator McAuliffe-Ennis to join in raising this matter on the Adjournment and I am aware that it is possibly quite a broad matter and adverting to the fact as Senator McAuliffe-Ennis has already mentioned, that there is a motion down to have a full discussion of all the issues which I hope will be taken for early debate in the House and in fairness to the Minister who has only ten or 15 minutes to respond to the matter, I am going to be both brief and narrow in the points that I will raise at this stage in support of the motion.

I could not agree strongly enough with Senator McAuliffe-Ennis about the difficulties that have arisen in relation to the means test as it applies at the moment within the civil legal aid scheme. I am aware through FLAC, I am aware as a practitioner, I am aware from solicitors complaining about it that the numbers of incredible hardship cases that are arising have increased greatly in recent months. For example, a deserted wife with six children is probably ineligible for legal aid. That is absurd. How could a deserted wife with six children be able to afford to employ a solicitor? This is about independent income. That is the stage we have got to. People on social welfare with a number of children are excluded because of the lack of variation of the income limit. There has been no increase in that in real terms since 1981. That harsh situation is combined with the fact that there [630] is a real problem of staffing in the law centres. They have suffered very badly from the policy of recruiting only one in three in the law centres. I know that there has been some concession made in this but nonetheless it means that law centres have to close altogether from time to time or have to postpone dealing with cases — family law cases — for an intolerably long time. Those are all problems I hope to develop at greater length when we come back to the full debate on this issue in response to the motion tabled by Senator McGuinness and myself.

The issue that is of critical urgency and should not have to wait is the question of revising the means test under the scheme. This is a non-statutory scheme. The Minister does not even have to make a statutory instrument. He has complete discretion as to what he does about it. In his response I would welcome it if the Minister would give the House an indication of how often this is reviewed. Does it come up for automatic review? Is account taken of the numbers who are turned away at the moment? Is account taken of the fact that recipients of social welfare who have a number of children are inexorably now above the income limit and cannot qualify and do not qualify? How is it that no adjustment has been made since 1981? Surely it must have been clear that this was going to have a harsh effect on an increasing number of people. This is the main purpose of raising the issue. Senator McAuliffe-Ennis has referred to one case that she had in mind which brought it home to her but I would certainly like to support her on the broader issue and, as it will be clear from the motion, it is time this scheme was put on a statutory footing because there are a number of other problems relating to it. I hope the Minister will respond favourably to the call for an immediate revision of the means test for civil legal aid.

Minister for Justice (Mr. Dukes): I want to thank the two Senators for raising this matter and I will limit myself mainly to the points that are at issue today without venturing too far on to a more [631] general response to the motion that is on the Seanad Order Paper, although there are one or two things I would like to say very briefly about that without prejudice of course to fuller discussion at a later stage.

I take the point that it has been quite some time since there has been a general revision of the means test limits in the scheme. It has been pointed out, and I would like to emphasise this fact, that some important changes were made in some of the means test provisions in 1983, the most important of those being a new provision giving the Legal Aid Board a discretion to make legal services available to eligible applicants in receipt of certain social welfare benefits and allowances for a maximum contribution of £15 for legal aid which could cover the cost of providing legal aid services in a case that might go as far as the Supreme Court. That change was welcomed by the board and by a grant many people outside of the board as representing a very substantial improvement in the operation of the means test.

I accept also that the present eligibility limit for applicants under the scheme that is a disposable income as calculated under the terms of the scheme of £3,500 per annum, is too low and that this and other limits in the means test need to be revised. I would like to draw attention to the fact that the means test limit is £3,500 of disposable income, I will return to that in a moment.

The board has referred to the need for a further revision of the means test, in particular the eligibility limit in the recent annual report for 1983 and 1984 and, as Senator McAuliffe-Ennis has pointed out the board reported that those found to be ineligible on financial grounds were, in fact, a growing proportion of the total number of applicants who were refused services under the scheme. A general review of the means test provisions under the scheme has been carried out and as I informed the Dáil on 22 April last, I hope to submit proposals to the Government very shortly on foot of that review.

[632] I am not so sure if I fully understood Senator Robinson's remarks when she talked about the non-statutory nature of the scheme. I would like to point out in case there is any confusion about it, that I do not have a complete discretion in the matter. I do not have power to review means test limits without obtaining the approval of the Government. There are times, of course, when one wishes that one had that kind of power but one does not. Of course, I formerly was in a position where on the whole I thought it was rather a good idea that Ministers should not have that kind of power. I would have to remain true to at least some elements in my past. Others perhaps I would prefer to forget.

There have been some criticisms of the means test provisions on a number of different grounds. I intend to refer only to one or two of them this evening. I would like to point out, first of all, that the means test system that we operate under the scheme is, in fact, the system that was recommended by the Pringle Committee in its report in 1974. That is by way of being a kind of an advance shot with a view to the debate we will have on the other resolution. It involves an assessment of the applicant's disposable income and disposable capital. Here I am coming back to a point that I made a little earlier on. In other words, it is based on what remains to the applicant after allowance is made for certain deductions in respect of accommodation and certain living expenses. It is not gross income. Therefore, it is a more generous means test than the figure itself would suggest to the casual observer. The main reason for that recommendation made by the Pringle Committee was to bring about a degree of flexibility and to allow the scheme to take account of the variation in circumstances between applicants to the scheme and it will be readily seen, of course, that applicants who were adjudged to have £3,500 or less of disposable income might be in very different financial circumstances one from the other. There is an element of flexibility there which it is important to keep. There would be general agreement that it shall [633] be kept. If I were to go any further in the matter I would be anticipating the later debate, which I prefer not to do at the moment, and Senators would prefer that I did not.

I have reviewed the scheme and I have proposals in mind that I would put to Government to improve the situation in relation to the means test and I hope that [634] we will come to a decision on that matter very shortly. It would be foolhardy to go any further. Were it the case that I had complete discretion, I would have done it by now.

The Seanad adjourned at 4.20 p.m. until 2.30 p.m. on Wednesday, 7 May 1986.