Guidelines for decision making

Section 24 (a) and (b) provide general conditions which must be met before the Board can grant legal aid. Unfortunately, these provisions are couched in highly unspecific terms, and seem at first sight, to offer a margin of discretion to the Board. However, the solicitor’s submission is of critical importance here as the solicitor is best placed to offer a view on the matter. Section 28(2) is of assistance in that it defines 3 (where welfare of children are involved) to 5 requirements which if met require the Board to grant legal aid. Further detail is provided on these conditions below. Some of the other merit criteria such as those described in section 28(9) (designated matters) are standalone criteria.

Section 24 and section 28 are related and provide generally applicable merits criteria to which decision makers should adhere. Leaving aside the application of specific merit criteria such as those contained in Sections 28(9)

The decision maker should first enquire whether the case is one in which the Board is required to grant legal aid under section 28(2) because 5 (or 3) of the requirements set out in paragraphs (a) to (e) are met.
If the decision maker decides that the requirements of section 28(2) are met then he/she must then consider whether the conditions of section 24(a) and (b) are met.
If some of the criteria contained in Section 28(2) are not met the Board is not required to grant legal aid under its provisions but may decide to do so if, for example, it is satisfied that the provisions of Section 24 are met or other mandatory provisions apply.
If after a review of the application of sections 28(2) and 24(a) and (b) the decision maker then must review the other standalone merit criteria to see whether any of these criteria either require or permit the grant or refusal of legal aid.

The following table describes each part of the merits criteria in detail:

S24(2)(a)	a reasonably prudent person, whose means were such that the cost of seeking such services at his or her own expense, while representing a financial obstacle to him or her would not be such as to impose undue hardship upon him or her, would be likely to seek such services in such circumstances at his or her own expense,	Would an average person pay for the case themselves if they had the money?
S24(2)(b)	a solicitor or barrister acting reasonably would be likely to advise him or her to obtain such services at his or her own expense.	Would a solicitor barrister advise them to take or defend the case?
S28(2)(a)	the applicant satisfies the criteria in respect of financial eligibility specified in section 29	Are they financially eligible?
S28(2)(b)	the applicant has as a matter of law reasonable grounds for instituting, defending, or, as may be the case, being a party to, the proceedings the subject matter of the application,	Does the person have a case in law to bring or defend a case?
S28(2)(c)	the applicant is reasonably likely to be successful in the proceedings, assuming that the facts put forward by him or her in relation to the proceedings are proved before the court or tribunal concerned	Is the case likely to succeed or be defended successfully? This does not apply in proceedings where the welfare of a child is the subject matter of the dispute or to sex offenders register order cases.
S28(2)(d)	the proceedings the subject matter of the application are the most satisfactory means (having regard to all the circumstances of the case, including the probable cost to the applicant) by which the result sought by the applicant or a more satisfactory one, may be achieved.	Have the parties tried to settle/and/or use ADR if these options are available?
S28(2)(e)	having regard to all the circumstances of the case (including the probable cost to the Board, measured against the likely benefit to the applicant) it is reasonable to grant it.	Is this a worthwhile case when you take into account the costs of bringing or defending the case? This does not apply in proceedings where the welfare of a child is the subject matter of the dispute or to sex offenders register order cases.
S28(4)(a)	the applicant may obtain the cost of the proceedings the subject matter of the application from, or be provided with legal representation by, a body or association of which he or she is a member or any other source,	Can the applicant get legal representation from another source
S28(4)(b)	the applicant has on a previous occasion obtained legal aid or advice within the meaning of the Scheme or under this Act in respect of another matter and has, without reasonable explanation, failed to comply with the terms on which such legal aid or advice was granted,	Has the applicant previously not complied with the requirements of the Board in relation to a legal aid matter.
S28(4)(c)	the cost to the applicant of engaging a solicitor and, where necessary, a barrister to represent him or her in the proceedings without legal aid would be less than the contribution payable by him or her under section 29 and regulations (if any) under section 37	The Board may refuse to grant legal aid. This should be considered in the following circumstances: Any case where the applicant’s contribution has been capped due to it exceeding the rate which the Board pays a private practitioner to perform the same service. Any other District Court or Circuit Court family law case where the applicant’s contribution is in excess of the following amounts: €417 in the District Court €5,000 in the Circuit Court.
S28(4)(d)	such information as is reasonably required by the Board from the applicant to enable it to make a decision on whether to grant a legal aid certificate or not has not been provided by him or her	The applicant does not provide the necessary information to permit a decision to be made after being given an opportunity to do so.
S28(9)(a)	the matter is out of the scope of civil legal aid by reason of being a designated matter	The type of matter is not expressly excluded (e.g. defamation, licensing etc). Beware the exceptions to the exclusions!

It should be noted that the Board is required under section 5 to provide legal services within its resources to cases which satisfy the requirements of the Act. In the general operating environment of the Board demand generally exceeds resources. The Board therefore needs to carefully apply these merit criteria so that resources are spent on cases which are likely to achieve a tangible result for legal aid applicants.