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Financial Eligibility and Instalment Contributions
Financial Eligibility Limits
The Civil Legal Aid Act 1995 (“the Act”) (section 29) provides that financial eligibility will be determined by reference to a person’s disposable income and, where appropriate, disposable capital.
Income is defined by reference to the date a person applies for legal aid (section 29(8)), and is generally for the year succeeding the date of application.
A detailed handbook on the assessment of financial eligibility is available by contacting the Private Practitioner Centre.
The financial eligibility limits are set out in the Regulations and are as follows with effect
from 1st September, 2006:-
> the disposable income limit is €18,000; and
> the disposable capital limit is €320,000.
The Regulations refer to the applicant’s home (being his or her ordinary place of residence) and provide that it is excluded for the purpose of assessing capital resources.
The minimum legal aid contribution is €50 and the minimum legal advice contribution is €10.
Enquiry into Applicant’s Change in Financial Circumstances
Private Practitioners are required to disclose any change in a person’s circumstances during the period of 12 months after they are retained. The Civil Legal Aid Regulations provide that the Board may:-
> reassess the income and capital resources of an applicant (Regulation 14(7)); and
> withdraw legal advice (Regulation 4(6)(c)) or terminate legal aid (Regulation 9(3)(d)) where it considers that the legally aided person is no longer eligible for legal services on financial grounds.
Any decision to withdraw or terminate services is a decision for the purpose of the Regulations and is subject to the usual decision making and appeal processes which are included in the Board’s Circular on revocation / termination of legal aid (also available from the Private Practitioner Centre).
The Board is of the opinion that it is not required to withdraw or terminate services if, following a reassessment, the person is no longer eligible for legal services under the Act. The normal practice should be to continue to provide legal advice or legal aid, as appropriate, provided that the person agrees and actually pays to the Board the full cost of legal services provided by the Board from the date on which it is established that the person is no longer eligible for legal services. The cost is to be determined by reference to the Board’s hourly rate, together with outlay on fees/reports etc.
Income in the Form of Various Social Welfare Payments
Exclusions from Income
The following payments/allowances/benefits are excluded from “income” in the determination of an applicant’s financial eligibility for legal services:-
> Domiciliary Care Allowance
> Child Benefit
> Money received from charitable organisations
> Orphan Allowance
> Foster Care Allowance - While the amount of a foster care allowance received by an applicant is not treated as income for the purpose of determining financial eligibility for legal services, an applicant is not given the dependent child allowance in respect of a foster child.
> Rent Allowance/Mortgage Interest Supplement - While the money received is not treated as income for the purpose of determining financial eligibility, an applicant is given an allowance
against income only in respect of that portion of the payment which the applicant makes from his/her own resources, i.e. excluding the allowance/supplement received.
> Supplementary Welfare Allowance/ Exceptional Needs Payments (SWA) - Single payments of SWA on an exceptional needs basis are not treated as income in determining the financial eligibility of an applicant for legal services.
> Carer’s Allowance - Where the person being cared for is a dependant within the meaning of
the Regulations, the appropriate allowance may be offset against the applicant’s income.
Inclusions as Income
The following payments/allowances/benefits are included as “income” in the determination of an applicant’s financial eligibility for legal services:-
> Family Income Supplement
> Fuel Allowance
> Supplementary Welfare Allowance (regular payments).
Other social security payments
Where an applicant for legal services is in receipt of social security benefits, which are payable in another jurisdiction and are of a similar nature to those payments/allowances/benefits referred to above, the payments received must be treated in the same way as similar payments made in this jurisdiction.
Granting of legal services to persons solely dependent on social welfare
The words “social welfare benefit or allowances” in Regulation 21(10) mean any payment of a welfare nature, paid by either the Department of Social and Family Affairs or the Health Services Executive, or a combination of such payments, which is the only source of income of an applicant. The contribution payable by applicants who are dependent solely on social welfare payments from other countries will also be determined in accordance with the terms of Regulation 21(10).
Treatment of Maintenance for Dependent Children as Income
In determining an applicant’s financial eligibility for legal services, the following approach to maintenance payments made pursuant to a court order should be adopted:-
> maintenance received by an applicant, pursuant to a court order in respect of and for the benefit of a dependent child, is not to be treated as income in the hands of the applicant;
> where maintenance is received, pursuant to a court order in respect of and for the benefit of dependent children, the allowance for a dependent child is applied as follows:-
- the dependant allowance, less the amount actually paid in maintenance, is given where the maintenance paid with respect to each child is less than the allowance for a dependent child; and
- the dependant allowance is not given where the maintenance paid with respect to each child exceeds the allowance for a dependent child.
Partners
An applicant for legal services should not be requested to provide information regarding the income and capital resources of a cohabiting partner, unless the application relates to some matter in which the applicant and the partner have a joint interest, arising out of which it would be reasonable to expect a cohabiting partner to co-finance the legal aid or advice in question.
General Principle Applicable to both Spouses and Partners of Applicant
It is considered that the circumstances in which the income of an applicant's spouse/partner will be requested will be rare, unless they are joint parties to the proceedings.
If any member of staff comes across a case where they consider that the spouse/cohabiting partner and the applicant have a joint interest in the issue, the matter should be referred to Legal Services Section for a decision as to whether information should be sought as to the income of the spouse/cohabitee and whether that income should be taken into account to determine an applicant’s financial eligibility.
Contributions
Payment by Way of Instalments
In most cases the applicant will have paid the full contribution prior to being referred to a private solicitor. However Regulation 21(5) provides that an applicant may pay a contribution by way of instalments. To ensure that the Board receives the full legal aid contribution from every legally aided person that has been granted authority to pay a contribution by instalments, the total contribution should be discharged by the legally aided person prior to the issuing of proceedings or the lodging of a defence, as appropriate.
Arrangements for the payment of contributions by instalments must be approved in advance by the Private Practitioner Centre and the solicitor will be informed accordingly. It is only in exceptional circumstances that an instalment method of payment can be offered as an option to an applicant and this is at the discretion of the Board. In all cases, contributions must be paid by instalments over a maximum period not exceeding twelve months from the date of acceptance of the offer of legal aid certificate, but this method of payment shall apply only if the Board is satisfied that the applicant cannot obtain credit elsewhere, or that it would cause hardship, or would be unreasonable in all the circumstances to require payment in advance.
Failure of a legally aided person to comply with instalment arrangements must be brought to the attention of the Private Practitioner Centre with a view to having the certificate terminated under Regulation 9(3)(b).
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