Recommending a refusal solely on grounds other than the merits
On occasion you may find yourself making a statement of facts where the grounds for refusal is not the merits of the case. For example,
- The matter is a criminal matter (section 26(2)(a))
- The matter is a designated matter (section 26(2)(b) in conjunction with section 28(9)(a) – consider whether the case would fit the exemptions under section 28(9)(b) first)
- The applicant could obtain legal services from another source (section 28(4)(a))
- The applicant has previously failed to comply with the terms of a grant of legal aid (section 28(4)(b))
- 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 (section 28(4)(c))
- The matter is before a tribunal which one which has not been designated by the Minister in accordance with section 27(2)(b)
A submission where the reason for recommending refusal is one of these reasons should follow the normal format up as far as the facts of the case. The case analysis should focus on the reasons the applicant fits into one of these categories.
If the matter is a criminal or designated matter the analysis need not be particularly detailed but should show to the decision maker that the matter is clearly a criminal/designated matter. However it will be unusual that you will need to make a submission on this grounds. Chapter 3 of the Administrative Procedures Handbook contains procedures for dealing with applicants whose case is quite clearly outside the scope of civil legal aid without proceeding to a formal application. In the case of a criminal matter a copy of the charge sheet or summons will be sufficient to ground a refusal.
Where the applicant has previously failed to comply with the grant of legal aid explain fully the circumstances involved.
Where it would be cheaper for the applicant to obtain legal representation privately, present evidence as to why this is the case e.g. at least two quotes from local private solicitors to do the same work. In principle the applicant’s contribution will need to be substantially in excess of €417 (if the case is in the District Court) or €5,000 (if the case is in the Circuit Court) before we would consider a refusal on this basis. We would be unlikely to refuse legal representation in the Superior Courts on this ground unless there were exceptional circumstances.
In all circumstances the recommendation for refusal must be grounded in the particular provision of the Act which allows us to refuse.