Paying and recording the financial contribution
In virtually all of the Board’s cases, other than the defence of an application by the Child and Family Agency (Tusla) for a care order/supervision order or in applications for a domestic violence remedy in the District Court, a person shall not qualify for legal aid or advice unless he or she pays a contribution. There are occasional exemptions, such as for complainants in rape cases, applicants in child abduction cases, human trafficking cases and persons seeking to have foreign court orders enforced in Ireland. Practically all other cases require the applicant to pay a contribution unless it is fully or partially waived on hardship grounds as per below.
The minimum contribution is €30 for legal advice and €130 for legal aid (which includes the advice contribution of €30). For all passported applicants, this is the contribution.
The maximum contribution is the cost to the Board of providing legal services for that matter. At time of writing the maximum contribution for a District Court case is set at €417 while the maximum contribution for a Circuit Court judicial separation or divorce case is €5,000.
The legal aid contribution consists of the income contribution and the capital contribution. EOS will calculate the contribution for you. Alternatively, it can be calculated manually using the Income Assessment Form (Chapter 4).
The Board accepts payment of contributions by cash, bank draft, credit/debit card or with a near field communication (NFC)-enabled mobile device using Apple/Android Pay. All payments received must be recorded on EOS.
The Board may waive a contribution or accept a lower contribution. The paragraph below headed “waiver of contributions” is explained in the è Circular on Legal Services. There is no provision in the Regulations (except in cases where an “emergency” certificate is granted) for the acceptance of undertakings in lieu of payment.
Under no circumstances should legal services be provided without:-
- the contribution being paid;
- the contribution being waived;
- arrangements having been approved for payment by instalments; or
- approval having been received from Legal Services where an emergency certificate is issued.
The general rule in relation to the payment of contributions is that the full contribution must be paid not later than the time that the applicant accepts a legal aid certificate. This usually means that the advice contribution will be paid at or before the triage appointment and the aid contribution will be paid when the client signs their legal aid certificate.
The “time of acceptance” is the time the applicant actually signs the acceptance form at the foot of the certificate. Unless this signature is secured and the contribution is paid (in the absence of an instalment arrangement) within one month of the offer of the certificate, the certificate automatically ceases to have effect.
The advice contribution must be collected at or immediately prior to the triage appointment with the solicitor.
The aid contribution must be collected by the staff member on duty when the client signs their legal aid certificate, unless alternative arrangements have been made and approved by Legal Services.
In certain law centres where equipment has been installed, the contribution may be accepted by way of credit/debit card, or by Android/Apple Pay.
Where the payment is for €30 or less (i.e. an advice contribution at the minimum, or a contribution in an international protection matter) the contribution may be paid by contactless credit/debit card. All other payments must be processed by way of Chip and PIN, or by Android/Apple Pay. We cannot process payments by signature only. We accept Mastercard and Visa as well as Visa Debit and Debit Mastercard (previously Maestro).
The equipment consists of two devices – a machine for use by the staff member (the “terminal”) and one for use by the applicant (the “PIN pad”). Where the transaction is done by Chip and PIN the staff member must ensure that the applicant is given privacy in completing the payment. Before a contactless card transaction is processed the applicant must state that they wish to pay by tap and pay.
Under no circumstances should a staff member:
- handle the applicants credit/debit card/mobile device
- ask the applicant for their PIN
Procedure 5.3a – Processing a credit/debit card/Android/Apple Pay transaction
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, at least half of the aid contribution should be discharged prior to the issuing of proceedings, or the lodging of a defence, as appropriate and if the case relates to a High Court or Circuit Court matter. The remainder of the contribution must be discharged prior to the conclusion of proceedings. If the case relates to a District Court matter it may not be appropriate or feasible to require payment of half of the contribution in advance however any instalment arrangement should where possible be formulated on the basis that the contribution will be paid before the conclusion of the proceedings.
Arrangements for the payment of contributions by instalments must be approved in advance by Legal Services. It is only in exceptional circumstances that an instalment method of payment can be offered as an option to an applicant / client and this is at the discretion of the Board. 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 Legal Services with a view to having the certificate terminated under regulation 9(3)(b).
Under the provisions of Section 29 (2) (b) of the Civil Legal Aid Act 1995 (as amended by Section 80 of the Civil Law (Miscellaneous Provisions) Act 2008) it is open to the Board to waive legal aid contributions in certain circumstances.
The paragraph in question reads as follows:-
“The Board may… waive any contribution payable pursuant to this section and to any other regulations under section 37, or accept a lower contribution, on the ground that a failure to do so would cause undue hardship to the applicant.”
Legal Services have discretion to waive all or part of a contribution in respect of certificates granted in certain circumstances, namely:-
- where the applicant is depending entirely on supplementary welfare payments;
- where the applicant is on “shared payments”;
- where the applicant has a maintenance order which is not being complied with by the spouse and the proceedings are to compel payment; or
- where an asylum seeker is on “direct provision”
provided that in each case the managing solicitor requesting the waiver and Legal Services in considering the application are satisfied that it would cause undue hardship to the applicant to pay the contribution.
In considering whether undue hardship is caused, regard should be had to the circumstances of the majority of the Board's clients who pay the appropriate contribution. Legal Services should clearly note that discretion to waive a contribution has been exercised.
A “shared payment” means a payment by the Department of Employment Affairs and Social Protection that is split between the claimant (usually a man) and a dependant (usually a woman).
Where an applicant does not fit one of the above criteria for a waiver that the application should be made to Legal Services who will consider it on a case by case basis. When considering an application for a waiver where the reason for the high contribution is a capital contribution, Legal Services will have regard to whether the asset in question could be considered a “necessary” asset, for example, it is considered that an applicant living in a remote area would not be asked to sell a car that they rely on for transport. Legal Services may also take account of the extent to which an asset is realisable, for example where there are genuine reasons why an asset cannot be sold.
Legal Services should also consider the nature of the case to which the application relates and the applicant’s role within the proceedings. For example if the applicant is seeking a legal aid certificate for the purpose of taking a case on foot of the domestic violence legislation, a sympathetic approach should be taken to an application for a waiver or a reduction in the contribution particularly if the applicant’s sole income is social welfare. In those circumstances it may be appropriate simply to seek the legal advice contribution. Likewise if the applicant is repeatedly served with applications issued by the other party a sympathetic approach should be taken. On the other hand if the applicant is seeking a more long term remedy that does not generally have an immediate urgency e.g, judicial separation or divorce, it is likely to be less appropriate that a waiver or reduction in contribution would be sought or granted.
Where a prisoner is seeking a waiver of their contribution, Legal Services will have regard to:
- the length of the prison sentence. It is considered, for example, that a prisoner serving a minor sentence on foot of a summary conviction will be more
- easily able to pay the contribution, and indeed may have been released by the time the first consultation occurs;
- the capital resources of the prisoner and whether the prisoner might have recourse to these to make the payment; and
- the subject matter of the application, including whether or not the applicant is responding to court proceedings.
Where the prisoner is serving a substantial custodial sentence (of more than one year) and has no capital resources, a waiver should be granted. Other cases should be considered on a case by case basis having regard to the above.
Submissions for a waiver must be made through EOS.
Procedure 5.5 – Making a submission for a waiver
Waivers granted will appear in the Financial tab under “Waivers”
Telephone payments are not as secure as credit/debit card payments. Use the Chip and PIN / Tap and Pay functions where possible
The payment terminal also includes a facility to accept a transaction where the cardholder is not present.
Law centres should exercise due care and caution with the use of this facility. They should satisfy themselves that the person who wishes to make the payment by phone is the applicant (and to this end, should verify the name, address, and one other piece of personal data of the applicant e.g. their telephone number) and record on the file that this was verified when taking the payment. It is possible for a credit card holder to utilise a “charge back” facility e.g. to apply to their financial institution to reverse the payment on the grounds that the card details were improperly obtained and utilised by a third party.
For security reasons, a law centre should not process any transaction in excess of €130 without the card holder being present.
Procedure 5.3b – Processing a credit/debit card transaction over the phone
Procedure 5.4 - How to record the financial contribution
Open the case on EOS
A receipt should be issued to the applicant using the “Generate Receipt” option in EOS.
If an applicant for legal services has defaulted on the payment of a contribution in respect of previous services, no further legal services should be provided without consulting Legal Services.
In international protection cases, the contribution payable by a financially eligible applicant is €10, covering both legal advice and legal aid.
Managing solicitors (or their nominees) have authority to waive this contribution in circumstances where the applicant is in direct provision and where the managing solicitor or their nominee forms the view that undue hardship would be caused if the applicant would have to pay the contribution.
The procedure below should be followed:
Procedure 5.6 – Making and granting a submission for a waiver in international protection cases where the applicant is on direct provision
The managing solicitor or their nominee should then:
In the case of an unaccompanied minor who is placed in state care, Tusla will pay the contribution. In such circumstances there is no need to apply for a waiver.
Further directions may issue from the Director of Civil Legal Aid in relation to the waiver of contributions.
Where a request for a waiver has been refused by Legal Services, the law centre will be informed of the grounds and reasons for doing so. The letter below should be sent by the law centre to the applicant conveying the decision.
The applicant has thirty days from the date the application for a waiver was refused to seek a review of the decision. A review, if requested, will be carried out by staff in Legal Services. They may also seek an appeal, either without going for a review or (more usually) after a negative decision in a review. If they sought a review, the time limit for an appeal (thirty days) runs from when the letter informing the applicant the review was unsuccessful was sent.
PRIVATE AND CONFIDENTIAL
Mr John Smith
1 Main Street
22 October 2015
RE: APPLICATION FOR LEGAL SERVICES
We refer to your application for legal services of (insert date) our letter of (insert date) offering you an appointment with a solicitor and your letter of (insert date) requesting a waiver of contribution.
Staff in our Head Office have considered your application for a waiver and we regret to inform you that it has been refused under Section 29 (2) of the Civil Legal Act 1995 as amended by Section 80 of the Civil Law (Miscellaneous Provisions) Act 2008.
The grounds for refusal is that [it is not considered that the payment of the legal [advice] [aid] contribution would cause undue hardship in this case]. The reason for refusal is that [as your financial circumstances are similar to a large number of legal aid applicants, the waiving of your contribution on the grounds of causing undue hardship is considered to be not merited in this case]. [The grounds and reasons should be substituted if different grounds and reasons are given by Legal Services for their decision.]
If you accept this decision
The Board remains in a position to offer you an appointment. with a solicitor [on _________ at _________. Please telephone the law centre at ____________ by ______________ to confirm your attendance.]
[Please telephone the law centre at _______________ to organise the exact time and date of your appointment].
[Your legal advice contribution will be € ___ which is payable at the time of this consultation. Should it be necessary to bring legal proceedings, and if you are granted a legal aid certificate, your legal aid contribution will be € , which is payable on acceptance of the certificate. Your solicitor will discuss this further with you at your consultation.]
If you do not accept this decision
You have the option to ask the Board to review this decision. A review means that you can submit further information in writing to the Board and ask us to re-consider the decision. For example, you may inform us of information which we failed to consider.
The review will be done by staff in the Board’s Head Office in Cahirciveen. You must submit any information in support of a review within one month of the date at the top of this letter. If you would like a review of the decision, you should write to the law centre at the address above submitting this information as soon as possible.
You may also appeal the decision to an appeal committee, which consists of members of the Board of the Legal Aid Board. They will consider your appeal and take a decision, which will either be to confirm the decision of the person who decided to refuse your application for a waiver, or they may overturn this decision and grant you a waiver. Usually, an appeal does not involve you submitting any further information to the Board. However, if you ask for a review and submit further information, you will have a further month after we tell you the outcome of the review to appeal.
If we do not hear from you
If we do not hear from you within thirty days of the date of this letter then we will assume you are no longer in need of legal services. This does not prevent you re-applying at a later date
An applicant may attend for a first consultation in a priority case and not be in a position, at the time of the first consultation, to pay the advice and (if applicable) the aid contribution.
In such a case the following steps should be followed:
- The first consultation should take place.
- At the first consultation, the applicant should be informed of their option to apply for a waiver of the contribution.
- In the event that they exercise the option:
- A submission for a waiver should be made on EOS as soon as possible, recommending a grant.
- The managing solicitor should phone Legal Services and advise them that the submission has been made.
- Legal Services should process the submission as a matter of urgency and contact the law centre when they have done so.
- Pending a decision on the waiver, legal services will be provided notwithstanding the fact that the advice and/or aid contribution has not been paid.
The above procedure should not be read as imposing a requirement on Legal Services to grant a waiver, nor as an indication that a waiver will be granted in all such cases. In the event that a waiver is refused, the applicant should be advised that no further legal services will be provided until the contribution is received.