Caoimhghín Ó Caoláin (Cavan-Monaghan, Sinn Fein)
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As we have a quorum, we will commence. We received apologies from Senator Niall Ó Donnghaile. I do not know if there are any other apologies that members would like to offer.

Before introducing our guest, I take this opportunity to welcome the members back to the committee post the Christmas recess and to extend very best wishes to each of them for 2017. Hopefully, as a committee, we have a busy and successful year.

The purpose of this part of the meeting is to have an engagement with Mr. Philip O'Leary, chairperson designate of the Legal Aid Board. On behalf of the committee, I thank Mr. O'Leary for attending and I extend a warm welcome to him. The format of the meeting is that Mr. O'Leary will be invited to make a brief opening statement and this will be followed by a question-and-answer session with members.

Before I begin, I must draw the attention of the witness to the position on privilege. Witnesses are protected by absolute privilege in respect of the evidence they are to give to the committee. If they are directed by it to cease giving evidence on a particular matter and continue to so do, they are entitled thereafter only to qualified privilege in respect of their evidence. They are directed that only evidence connected with the subject matter of these proceedings is to be given and asked to respect the parliamentary practice to the effect that, where possible, they should not criticise or make charges against any person or persons or an entity by name or in such a way as to make him, her or it identifiable. Members are reminded that, under the salient rulings of the Chair, they should not comment on, criticise or make charges against a person outside the Houses or an official, either by name or in such a way as to make him or her identifiable.

I invite Mr. O'Leary to make his opening statement.

Mr. Philip O'Leary:

Táim buíoch as ucht an chuiridh ón gCathaoirleach teacht os bhur gcomhar inniu. Is mór an onóir dom a bheith os comhair an choiste. Tá súil agam go mbeidh an coiste sásta liom mar chathaoirleach ar an An Bord Um Chúnamh Dlíthiúil agus go mbeidh me ábalta aon cheist ata acu a fhreagairt. I am humbled and honoured to have been nominated by the Tánaiste and Minister for Justice and Equality as chairperson of the Legal Aid Board for a five-year term and to be here before the Oireachtas Joint Committee on Justice and Equality. My appointment as a member of the Legal Aid Board, together with that of the other members, took effect from 8 November 2016. I am grateful for the responsible role given to me and I look forward to the challenges that will arise.

I served a full five-year term as an ordinary member of the previous board. That board's term of office expired on 10 October 2016 and I am the sole member to have been reappointed. I served on a number of the board's committees and I chaired its audit and risk committee. My experience as a member of the previous board has given me a very good understanding of both the organisation and the challenges it faces and I believe it also ensures both corporate memory and good governance practice.

I am a solicitor with over 30 years' experience in private practice. My professional involvement continues with the firm of FitzGerald Solicitors in Cork, of which I have been the managing partner for over ten years. I currently practise law, particularly in the area of commercial and private client. For the benefit of the committee, I set out my involvement in areas of legal practice, community and sport.

Working in a busy legal practice, with 13 solicitors and 19 support staff, means that I am experienced in overseeing a range of areas, including commercial, child care, family law and private client. I practise law with the benefit of up-to-date technology and case management. Part of my work involves taking a multidisciplinary approach and directing efficient resources for timely and successful outcomes.

I come from a modest background and I understand that poverty is not just about a lack of money, it is also about a lack of access to opportunities, education and justice. I continue to have a deep empathy and understanding of the clients of the Legal Aid Board who are persons with modest incomes and I understand the importance of access to justice for all, which is an important part of any functioning democracy.

I was involved with the Free Legal Advice Centres, FLAC, in Cork for over 15 years. I chaired the Cork organisation when I was a student in UCC many years ago. I was a founding member and director of the Farranree Sheltered Housing Association, FSHA, a not-for-profit body providing accommodation to the elderly in the community. The FSHA developed and built 39 new units locally and continues to provide sheltered accommodation.

I understand the importance of voluntary work in the community and, like most Cork people, I am passionate about hurling. I am a member of Inniscarra GAA club and I am actively involved in coaching its under-age teams. Mol an óige agus tiocfaidh sí.

As I said, I have been a member of the Legal Aid Board since December 2011. The Legal Aid Board commenced in 1979. Its principal function has been to provide civil legal aid services to persons of modest means. The board was established as a statutory body on foot of the Civil Legal Aid Act 1995. It provides legal services using a mixed model of delivery – it employs solicitors and support staff in law centres and it refers cases to private solicitors on a fee-per-case basis. There are 30 law centres located throughout the country along with three specialist offices.

The board's head office is located in Cahirciveen, County Kerry, with some functions being provided from an office in Dublin. The move to Cahirciveen was one of the early decentralisations and the permanent office opened there in 2002. The board has a full-time equivalent staff of 425, of whom just over 300 work in law centres - 120 of these occupy solicitor positions - approximately 40 in the family mediation offices, 21 of whom are mediators, and over 80 in head office support functions.

The board's grant for 2017 is just under €39 million. The grant constitutes approximately 93% of the board’s income.

Over 17,000 clients applied for civil legal aid in 2016. The gateway to civil legal aid services is the law centre, where the vast majority of persons make their applications. There is a merits test and there are financial eligibility criteria. Most persons who receive legal services are required to pay a contribution. Most areas of civil law come within the ambit of the Civil Legal Aid Act and the approach that the legislation takes is that a matter comes within the Act unless it is specifically excluded. In practice, the majority of persons seeking civil legal aid services from the board, do so in respect of family problems.

My work with the Legal Aid Board included membership of the appeals committee, which deals with appeals on the refusal of legal aid certificates by the executive, and I have adjudicated on over 500 appeals to date. I also chaired the audit and risk management committee. This entailed supervising the overall risk management strategy for the board's operations. My private practice experience has been instrumental in shaping the risk management strategies of the board in the practice of law over wide ranging areas. I have also advised on the important liaison with the Comptroller and Auditor General's office on the annual audit of the board's activities.

The board's law centres have waiting lists, which is a continuing challenge. In some ways the recession was the perfect storm for the organisation as demand for services increased very significantly at a time of constrained resources. On 1 January 2014, there were over 5,000 applicants waiting for legal services. The figure is now under 2,000, which is a welcome improvement. Urgent cases are prioritised. Nevertheless, the fact that there are persons waiting is not ideal. I wish to work with the board and to support the staff in continuing to reduce the waiting list to a manageable number.

I have mentioned the financial eligibility criteria, which have not been significantly revised in over ten years. I wish to examine the criteria to ensure that those who genuinely cannot afford to pay for legal services are not disqualified for financial reasons, particularly in cases where working people of modest incomes are provided with additional State support, for example, the family income supplement, thus potentially creating a poverty trap.

Change in the legal arena is ongoing and some of it impacts on the board’s business. The board is a key player in the recently launched Abhaile scheme which aims to support, with financial and legal advice, those at risk of having their homes repossessed. There is a statutory provision, yet to be commenced, to transfer responsibility for the Mental Health Commission’s legal aid scheme to the board. There are also significant legal aid provisions in the Assisted Decision Making (Capacity) Act 2015 that have yet to be commenced. I see the board as having an important role in ensuring that these and other similar changes are given effect in a manner that best serves the client.

In November 2011, a legislative amendment transferred responsibility for the State-funded family mediation services to the board. The rationale for this was that there was considerable scope for synergising the delivery of civil legal aid services in family cases with the provision of a family mediation service. The board’s family mediation services are provided out of nine full-time and eight part-time offices. Mediation services are provided without reference to a person’s means and are free of charge. The board opened its first co-located family mediation office and law centre in Jervis Street last year. There are plans to co-locate further offices. The board also has mediators situated full-time in the District Family Court in Dublin. We can do more to divert those experiencing difficult family problems from the adversarial court process to the process of mediation and I wish to work with the board, the staff and other stakeholders to ensure that real options are available to those experiencing relationship breakdown and that the court process is not simply seen as the automatic default.

In November 2010, the Government transferred the responsibility for the administration of criminal legal aid from the Department of Justice and Equality to the board. To date, responsibility for three ad hocschemes, namely, the Criminal Assets Bureau legal aid scheme, the legal aid – custody issues scheme and the Garda station advice scheme, have been transferred. The transfer of responsibility for the main criminal legal aid scheme requires a statutory amendment. I understand that a criminal legal aid Bill incorporating the amendment is likely to be published shortly. I want the board to work with the Department on the forthcoming criminal legal aid legislation. This legislation will transfer responsibility for the administration of criminal legal aid in addition to putting in place reforms to the system. The expenditure on criminal legal aid in any year is approximately €50 million and a priority, when the board has responsibility, will be to ensure good governance.

A longer term objective I have for the new board is to have a more holistic look at the broader access to justice landscape and to examine if the board is playing its role as effectively as it could or if there should be a refocus in terms of the work it does and does not do. I am aware of significant changes in the legal aid landscape that have either occurred or are being planned in neighbouring jurisdictions. I am not suggesting that we should follow some of the actions that they have taken but to quote Francis Bacon, "Things alter for the worse spontaneously, if they not be altered for the better designedly". I am keen to ensure that there is coherence and logic to the legal aid regime we have and that it continues to contribute meaningfully to access to justice. Ba mhaith liom mo bhuíochas a ghabháil libh bheith ag éisteacht liom inniú agus ta me sásta iarracht a dheanamh chun aon cheist a fhreagrú.

Caoimhghín Ó Caoláin (Cavan-Monaghan, Sinn Fein)
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I thank Mr. O'Leary for his opening address. Three members have indicated that they wish to speak. I call Senator Lorraine Clifford-Lee.

Lorraine Clifford Lee (Fianna Fail)
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I thank Mr. O'Leary for attending and I wish him the best of luck during his tenure at the Legal Aid Board. I have three questions. First, Mr. O'Leary referred to the Abhaile scheme. The Legal Aid Board is responsible for three component parts of the scheme. How many practitioners have signed up for the scheme and what is the geographical spread of the practitioners? My second question is about the minimum contribution, which currently stands at €130. Are there plans to reduce the minimum contribution, given that many people find it difficult to pay it? Can Mr. O'Leary provide some statistics on the number of waivers of the minimum contribution that were granted in the past year? My third question relates to the waiting times, a matter to which Mr. O'Leary also referred. Are there plans to open the private practitioner panel further to alleviate the waiting times and, if not, what other plans does the board have in that regard? Also, perhaps Mr. O'Leary could indicate the approximate average waiting time.

Mr. Philip O'Leary:

I thank the Senator for her good wishes, which are appreciated. The Abhaile scheme was introduced in October 2016, so it is relatively new. The scheme is being co-ordinated with the Money Advice and Budgeting Service, MABS. The involvement of the Legal Aid Board is that if MABS decides that a person is entitled to legal advice, a voucher is issued which entitles the person to get legal advice from a private practitioner. I am not aware of the number of practitioners who have signed up to the scheme today, but that information will be furnished to the committee as necessary. Approximately 1,000 vouchers for legal advice have issued since the scheme opened and about 450 of the vouchers have been redeemed to date.

The Abhaile scheme also deals with personal insolvency matters. Under new legislation, there is now a facility to challenge a personal insolvency application if the lending institutions do not agree with the proposal. The method of doing that is an appeal to the Circuit Court. A number of legal aid certificates have been granted in respect of such appeals before the Circuit Court. The most recent figures I saw show that between 16 and 20 of those legal aid certificates had been issued.

I am also aware of four certificates having been issued for an appeal from the Circuit Court to the High Court on points of law. The third point on the Abhaile scheme is that a duty solicitor has now been put in place in the office of the repossession registrar and the courts in order that persons coming before the courts who are often unrepresented will be given the opportunity to receive some legal advice and directed towards the various schemes now available.

The Senator also asked me about the minimum contribution. Currently, it is €130. There are no plans to reduce it, but, as I said in my address, the question of eligibility for legal aid is being considered by the board. It was put in place in November and we have had one board meeting so far. There will be another tomorrow and on the agenda is the question of eligibility and putting proposals to the Minister in due course. On the waiver of contributions, a waiver scheme operates and is often applied in domestic violence cases. I have looked at the agenda for the meeting tomorrow and that issue will be before the board for consideration. I do not want to pre-empt its decision, but the matter will be given a sympathetic hearing.

The final question the Senator asked was about waiting times and the use of the private practitioner scheme. The board operates a number of private practitioner schemes. The one of particular interest is probably in respect of District Court matters, including domestic violence, custody and access. The scheme is utilised as best as possible within the budget to alleviate waiting lists. We are constrained in the use of the scheme, but in any given year approximately 5,000 cases are referred to private practitioners to try to alleviate waiting lists.

Lorraine Clifford Lee (Fianna Fail)
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I will come back in briefly on that point. I was actually more interested in the use of the private practitioner scheme in dealing with Circuit Court matters, including divorce and judicial separation. With regard to the waiver scheme, will Mr. O'Leary come back with some figures and percentages for the numbers of waivers issued?

Mr. Philip O'Leary:

I do not have that information in front of me, but the board will be very happy to come back to the committee this week with figures. In the case of the Circuit Court the scheme has had limited application. It is more expensive from the point of view of the board's expenditure, but, where possible and necessary, it has been implemented to alleviate waiting lists, particularly in centres where they longer.

Lorraine Clifford Lee (Fianna Fail)
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Are new practitioners being accepted into the scheme?

Mr. Philip O'Leary:

The scheme is open at all times. Any practitioner can apply to join the scheme once he or she has a practising certificate.

Caoimhghín Ó Caoláin (Cavan-Monaghan, Sinn Fein)
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When responding with additional information, Mr. O'Leary should direct it towards the secretariat. It can then be circulated to the members of the committee.

Mr. Philip O'Leary:

Certainly.

Caoimhghín Ó Caoláin (Cavan-Monaghan, Sinn Fein)
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I thank Mr. O'Leary and Senator Lorraine Clifford-Lee.

Jim O'Callaghan (Dublin Bay South, Fianna Fail)
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Ba mhaith liom comhghairdeachas a ghabháil leis an bhfinné ar a oifig nua agus tá súil agam go mbeidh sé an-shásta ar fad mar chathaoirleach ar an oifig sin sna blianta romhainn. I congratulate Mr. O'Leary. Is he the chairperson because on the screen he is referred to as the chairperson designate? Is there a distinction?

Mr. Philip O'Leary:

I am the chairperson. I have been appointed.

Jim O'Callaghan (Dublin Bay South, Fianna Fail)
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I congratulate Mr. O'Leary and wish him well in the job.

I have a question about financing. In his opening statement Mr. O'Leary said the board had a grant of €39 million per year. Is that exclusively for civil legal aid or does the board receive more money on top of that sum? Mr. O'Leary mentioned that after that there was a figure of €50 million to meet the cost of providing criminal legal aid? How much does the board receive each year from the State?

Mr. Philip O'Leary:

The sum the Civil Legal Aid Board receives from the State ever year is €39 million. The criminal legal aid budget which has not yet been transferred to the board is approximately €50 million. It is controlled by the Department of Justice and Equality.

Jim O'Callaghan (Dublin Bay South, Fianna Fail)
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When it comes to making decisions on applications for civil legal aid and which applications the board should support, what process does it use in making them?

Mr. Philip O'Leary:

There are two effective thresholds that have to be met in order to obtain a civil legal aid certificate. There is the finance eligibility threshold and then there is what we call the merits test. If a person wants to qualify to receive legal aid, he or she to be within the finance eligibility threshold. Second, to put it in layman's terms, he or she has to establish he or she has a reasonable chance of success in going to court and that a reasonable person with reasonable means would take on the case.

Jim O'Callaghan (Dublin Bay South, Fianna Fail)
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If, on one side, a person is being sued by a financial institution and, on the other, there is a family law dispute, does the board assess which of the applicants has the better chance of success or does it look to see who is more deserving?

Mr. Philip O'Leary:

Each case is decided on its merits. An applicant has to establish in the merits test that it has a reasonable chance of success.

Jim O'Callaghan (Dublin Bay South, Fianna Fail)
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Has the board had to turn away many applicants in recent times for civil legal aid?

Mr. Philip O'Leary:

Refusals are based on two grounds, the first of which is that an applicant is over the limit. The limit is something that needs to be looked at. It is currently a disposable income of €18,000 per annum. I mentioned in my opening address that sometimes the State gave with one hand and took with the other. If one is working, on a very low income and in receipt of family income supplement, it can push him or her over the eligibility limit. While we are trying to assist people on low incomes, they might lose out on other benefits, including legal aid.

Jim O'Callaghan (Dublin Bay South, Fianna Fail)
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Mr. O'Leary mentioned that in the Abhaile scheme the board played an important role. Has he noticed an increase in the number of people seeking support under the civil legal aid scheme because of the financial crisis we have gone through?

Mr. Philip O'Leary:

As I said in my opening address, there was the perfect storm from the point of view of civil legal aid and the number rose to over 19,500 applications. It has now settled back to a figure in the range of 16,000 to 17,000 per annum. In recent months, because of the introduction of the Abhaile scheme, there has been a huge increase in the number of applications. It is a scheme that is very welcome and worthwhile.

Jim O'Callaghan (Dublin Bay South, Fianna Fail)
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Does Mr. O'Leary think members of the public are sufficiently aware of the important role played and service provided by the Civil Legal Aid Board if they get into financial difficulties with financial institutions and are brought to court?

Mr. Philip O'Leary:

In previous years there was a feeling people were not turning up before the repossession courts. In many repossession cases, in which houses were being repossessed by financial institutions, there was a low turn-up rate for borrowers because they could not afford to pay or were in denial and did not want to go through the process. Because of the new scheme, there is more engagement. The MABS and the personal insolvency service have a person for every county registrar list and cases in the Circuit Court and the level of engagement with distressed borrowers has increased substantially in the past few months, which is very good.

Jim O'Callaghan (Dublin Bay South, Fianna Fail)
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I thank Mr. O'Leary.

Jack Chambers (Dublin West, Fianna Fail)
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Like my colleagues, I wish Mr. O'Leary well in his new role. As he mentiioned, he has a challenging few years ahead. I have a number of questions which follow on those of my colleagues.

I have just looked at the annual report for 2015 in which it is outlined that 75% of cases involve general family law and divorce matters. Asylum cases account for 10% of the total, while 5% involve children and other civil matters, 10%. Linked with the general financial eligibility criteria, do the percentages, by case type, as outlined in the annual report, refer to the numbers of applications before they are triaged by the board or the applications that have passed through the initial process?

Mr. Philip O'Leary:

The numbers of applications are determined by those who are eligible and meet the financial criteria. They refer to the actual numbers of applications.

Jack Chambers (Dublin West, Fianna Fail)
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Is it an application that has been approved by the board?

Mr. Philip O'Leary:

Yes.

Jack Chambers (Dublin West, Fianna Fail)
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What about a situation where a person has a difficulty and faces potential repossession of his or her home, in which the equity exceeds the technical financial criteria of the Legal Aid Board? If it is above €100,000, does it effectively remove thousands of potential applicants who, in real terms, have little or no access to finance but who are excluded because of the technical financial criteria of the board?

Mr. Philip O'Leary:

In the case of repossessions, generally the equity in the house is very low and the disposable assets are-----

Jack Chambers (Dublin West, Fianna Fail)
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That is taken into account, rather than the value of the house.

Mr. Philip O'Leary:

It is taken into account. Most would qualify automatically on the basis of the financial eligibility criteria.

Jack Chambers (Dublin West, Fianna Fail)
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Is the disposable income incorporated into the application?

Mr. Philip O'Leary:

Yes.

Jack Chambers (Dublin West, Fianna Fail)
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When one looks at the case types for 2015, it appears unusual that it was not even included in the pie chart. Mr. O'Leary mentioned that he wished to have the eligibility criteria changed. What projected change would he like to see?

Mr. Philip O'Leary:

The cut-off point is €18,000. The difficulty I have is that if a person is on a figure of €18,100, he or she is cut off; therefore, there is almost a cliff edge. It is subject to the board's consideration and the Minister's consent because the Minister must pass a regulation, but there is room to increase the limit and probably to allow for a situation where, perhaps, the contribution might increase. However, there would not be the cliff edge effect where it is either all or nothing.

Jack Chambers (Dublin West, Fianna Fail)
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How many applications were not approved by the board last year because of the cliff edge effect?

Mr. Philip O'Leary:

I do not have the figure with me, but we will provide it for the committee in due course.

Jack Chambers (Dublin West, Fianna Fail)
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That would be useful. The other issue concerns the mental health tribunal and the criminal legal aid Bill. Has the board developed a process to manage that change? How will it manage it in terms of staffing and resources?

Mr. Philip O'Leary:

Currently, we are handling three of the ad hoc schemes for criminal legal aid and received an increased budget from the Minister in that respect, which was most welcome. The budget for 2017 has been increased by €1.7 million, which is a welcome addition. The criminal legal aid system effectively involves private practitioners who apply to participate in the scheme. The board's involvement is in the governance and administration of the scheme. It is a big scheme which has a big budget which exceeds the current civil legal aid budget. It involves considerable responsibility in terms of its governance and administration.

Jack Chambers (Dublin West, Fianna Fail)
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Mr. O'Leary mentioned that the Legal Aid Board had reached a crisis number on waiting lists and that it had been stabilised. What is the manageable number that could or should be waiting in terms of the board's current budgetary allocation?

Mr. Philip O'Leary:

As I said, we reduced the number on the waiting list figure from 5,000 to 2,000 and the current trajectory is still downward. I am more interested in how long people have been waiting than in how many are on the list. The number on the list is determined by demand, which can vary from centre to centre and depend on what is happening in society and the legal arena. The real question is for how long people have been waiting to get a service. The board's objective is to have a substantive service available to people within four months of being seen. As we are not meeting that objective in every centre in the country, we are trying to reach that point. In addition, during the term of the last board we introduced what was known as a triage system, whereby if a person did not receive a substantive service within four months, we would try to get to a position where he or she would see a solicitor within six weeks to receive advice. It means that at least we are identifying the difficult cases and giving them attention early in the process in order that access to justice is real and meaningful.

Clare Daly (Dublin Fingal, Independent)
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I wish Mr. O'Leary the best of luck in his new position and thank him for attending.

I do not have huge knowledge of the legal aid process, but where I have encountered it, I found it largely inaccessible. I have never met or represented anybody who managed to receive civil legal aid. That is the problem. Let us be clear about this. Most people cannot access civil legal aid. That has been my experience. That is not Mr. O'Leary's fault and I am not blaming him or personalising the matter; it is just an evaluation of the process. There must be a complete overhaul of how the system is administered. Is it not the case that the law centres are the only places that deal with civil legal aid applications and that for an ordinary practising solicitor to qualify or be vetted and approved, as appropriate, to provide free legal aid, he or she must undertake a huge volume of free work to such an uneconomical level that most do not do it? I am not sure, but is that a correct characterisation of the process?

On the number on the waiting list, there are obviously financial and repossession cases, but there are also family law issues. In many instances, my experience has been that women in a vulnerable position have not been able to receive free civil legal aid where timing is of the essence and there is a certain urgency. In these circumstances having a waiting list is not acceptable. What is the story in that regard? It appears that there are very few people who can provide a civil legal aid service. The other aspect is repossession cases. The number turning up in such cases without representation is growing. Is Mr. O'Leary saying there is now somebody in every court who will go to every person involved in a repossession case and say, "I am the local fellow here and if you want some legal advice before the case is heard, you can talk to me"? If that is the case, I was not aware of it.

On criminal legal aid, I do not wish to be derogatory, but from visiting courthouses in many parts of the country it is something of a gravy train for solicitors who take on free criminal legal aid cases. The same solicitor stands up in every case. It is cursory representation. One gets the impression that he or she does not know the person involved and does not care. He or she makes the same points in every case. It is like a treadmill and completely unacceptable. What level of oversight is there in that regard? A legal firm which is seeking to be approved by the Legal Aid Board must make an application in every jurisdiction. Can that system be overhauled? There should be just one application to cover all counties, rather than having a solicitor vetted in each county. It is increasingly becoming a problem in the District Court around the country. Because of a certain cosy atmosphere in these courts, a defendant might wish to be represented by someone from outside the jurisdiction, yet his or her legal firm in Dublin, for example, must be vetted in Clare, Kerry or another county. From the point of view of simplifying the bureaucracy involved, surely one application should cover every county. Would that not help to streamline the process and save an enormous amount of administrative resources? It is a practical suggestion.

In addition, will Mr. O'Leary deal with the legal aid custody advice scheme? I understand the fees being paid under the scheme are incredibly low. They almost act as a deterrent in making it difficult for legal practitioners who might wish to take on prisoner cases. If they wish to do so, there is a substantial cost involved because the fees are lower. Is there a difference between the fees paid under the scheme and those paid under other schemes? Will Mr. O'Leary outline the fees paid in such cases or how it works?

Mr. Philip O'Leary:

I thank the Deputy for her good wishes. She raised a number of issues.

On criminal legal aid, as the board has not yet taken over the substantive scheme, I do not have the details.

A sum of €1.4 million was spent last year under the custody scheme. I cannot give the figures for the individual payments per attendance.

The criminal legal aid scheme has served the country well for the more than 30 years it has been in existence. Thankfully, tere are very few cases involving a miscarriage of justice in this country. We have seen miscarriages of justice in other jurisdictions, including the United Kingdom and America. Our system is robust. A defendant has a constitutional right to select his or her own solicitor. When the Deputy says that sometimes the same person stands up in the District Court, it is because the defendant has sought that particular individual who might be very well versed in the particular area of law. I practised for approximately 15 years in the District Court, but that was some time ago.

On the numbers receiving civil legal aid and the Deputy's observation that people do not qualify, the number who qualified last year was just over 17,000. The majority of those cases involved family law matters, including family disputes, domestic violence, custody, access or child care, and take up a considerable length of time.

The question of priority and waiting lists is important. There is no doubt that cases requiring priority, such as domestic violence, are given urgent priority and effectively no waiting lists will apply to a person who is in need of advice on a domestic violence matter. Where a child has been taken into care or where a statutory provision under the Statute of Limitations arises, the cases are carefully examined by the board and are prioritised - I can guarantee the committee of that.

Reference was made to free work by practitioners to get on the civil legal aid scheme. First, the civil legal aid scheme is not free. Contributions are paid. My understanding of the civil legal aid scheme is that any practitioner can apply to go on the panel if he has certain expertise in the family area - that is where most of the referrals go.

Clare Daly (Dublin Fingal, Independent)
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Does a practitioner not have to do a certain amount of free work to be eligible to go on it?

Mr. Philip O'Leary:

I am completely unaware of that and I would say that is not correct. I am unsure whether I have dealt with all the questions from the Deputies.

Caoimhghín Ó Caoláin (Cavan-Monaghan, Sinn Fein)
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Was there an additional point you wanted to address, Deputy Daly?

Clare Daly (Dublin Fingal, Independent)
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Most of my questions relate to the criminal end. Mr. O'Leary is right: the board has not taken over that function yet. That area needs a significant amount of work as far as I am concerned.

Caoimhghín Ó Caoláin (Cavan-Monaghan, Sinn Fein)
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I thank Deputy Daly and Mr. O'Leary. Deputy Jonathan O'Brien is next and brings a familiar accent.

Jonathan O'Brien (Cork North Central, Sinn Fein)
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I wish Mr. O'Leary well. I know of his voluntary work in the community, especially relating to the Farranree Sheltered Housing Association. Mr. O'Leary is the founder and chairman. It is still thriving in the area and is a most welcome development.

I wish to make an observation arising through my work in my clinics. We refer people to the Legal Aid Board. They might have a pending court case. I echo the comments of Mr. O'Leary with regard to waiting times for certain types of cases, such as domestic violence or child custody access cases. Our experience in the Cork office is that people will always get representation and advice and there is no waiting list. If there is an ongoing case, it may be transferred to a different practitioner but the initial court case will always be dealt with efficiently. That should be noted.

I know the board will be examining income thresholds. There is a cliff-edge threshold and if a person is €100 over the threshold, it is a problem. I presume no discretion is available to the board to consider cases in the whole. If not, could that change if the Minister so wished? Could the Minister give some level of discretion to the board?

The other area I am keen to touch on is the family mediation service. How successful has the service been in dealing with waiting lists? In my experience of cases, especially family law cases, a person who approaches the board is diverted to the family mediation service. It may be dealt with there without having to go to court proceedings. Does the board have figures or statistics on how successful it is and whether it will be expanded? I realise it involves a number of sectors. Anyway, in the coming five years is this something the board is looking to expand?

Mr. Philip O'Leary:

I thank Deputy O'Brien for his kind wishes. It is nice to speak to a fellow northsider from Cork. I agree with the Deputy on the point about income thresholds. The cliff-edge effect is unsatisfactory. I hope we will be able to alleviate it with a proposal to increase the thresholds and perhaps have an increased contribution at the higher level. In that way, at least people would still qualify and we would not have the effect of all duck or no dinner.

Deputy O'Brien referred to the family mediation service. That is an important part of the work of the board. The board took over the family mediation services five years ago. Considerable work has gone into integrating both services. I referred to the Jervis Street co-located office that opened recently. My view and the view of the board is that the more cases we can keep out of court and keep within mediation, the better. This brings better outcomes for the parties involved and is less adversarial. An agreement is more likely to stick in the long term than a court-enforced judgment, no matter how well intentioned. I examined the statistics recently. In cases where people attend mediation and both parties engage, we are getting up to a 50% success rate in terms of a mediated agreement. That is a positive and impressive statistic and one we can maintain. New schemes are being operated including in Cork, Athlone and Castlebar. These are termed mandatory information schemes. This means if a person wants to get a legal aid scheme to go to court, then he has to attend a mandatory information session first. I am not suggesting we are forcing people to go the mediation route but we are giving them the opportunity and the information that is necessary for them to engage in that route. From a holistic view of the court services and access to justice, mediation is an area where there could be significant improvement in the sense of the way we have managed society and access to justice.

Jonathan O'Brien (Cork North Central, Sinn Fein)
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I realise the income question is something the board will examine. Is room for discretion something Mr. O'Leary would wish for or is he happy to have the rigid interpretation?

Mr. Philip O'Leary:

The rigid interpretation causes difficulties. I will offer the Deputy an example relating to a social welfare payment such as the family income supplement. That is taken into account. If a payment is not a social welfare payment, then it is not taken into account. I came across an example recently involving a housing assistance payment. This payment is replacing rent supplement. If an applicant is on rent supplement, the payment is taken into account in the income. However, if the applicant is on the housing assistant payment, it is not because it is not a social welfare payment. Instead, it is paid by the local authorities. Such anomalies have to be sorted for everyone to be treated equally. In an ideal world, some level of discretion should be allowed. If we could remove some of the anomalies relating to the allowance and avoid the poverty trap to ensure those on modest incomes get access, it would be an improvement. To be fair, everyone involved in the organisation – it is a large and fantastic organisation – is interested in access to justice and they understand the importance of it. When people come to the Legal Aid Board, they are usually going through a vulnerable time in their lives. Whether it is a family case or some other case, it can have life-changing effects on how things progress for them. We take every application seriously and we do our best to ensure those who are able to qualify do qualify for the scheme.

Jonathan O'Brien (Cork North Central, Sinn Fein)
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Can Mr. O'Leary clarify the point? Rent allowance is not included as part of the income but the HAP is included. Is that the case?

Mr. Philip O'Leary:

No, it is the opposite; rent allowance is and HAP is not.

Martin Conway (Fine Gael)
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I wish Mr. O'Leary well in what is an important role that benefits and is supposed to benefit the most vulnerable in our society. I am rather alarmed at the anomalies Mr. O'Leary has outlined to Deputy O'Brien, especially the specific example. I am always a great believer in a certain element of discretion. We are in a systems-driven society. Whether it is a third level grant application or a medical card, discretion is non-existent. If there was some element of discretion, it would serve the citizens far better. Is it possible for Mr. O'Leary to make available to us a list of the anomalies in order that we can talk to the Minister and see whether they can be rectified? It is absolutely nonsensical that rent allowance would be a consideration whereas a housing assistance payment would not. I imagine these issues should be dealt with simply and quickly. I was not aware of that particular anomaly. If there are other anomalies, then perhaps Mr. O'Leary could make the secretariat aware of it in order that we can highlight it with the Minister and her officials.

Mr. Philip O'Leary:

I thank the Senator for his good wishes. I agree that these anomalies should be outlined.

The HAP is a very recent anomaly because it is a recent payment that has arisen and these anomalies do arise in every system. They should be dealt with as part of a proposal to the Minister, which I hope the board would consider shortly and put a proposal to the Minister for consideration of the overall eligibility and the type of allowances that are available. Perhaps the question of discretion that was raised by Deputy O'Brien would be put to the Minister in a coherent and costed fashion. I am conscious that we have a limited budget, like everything in the State, and be it the health services or education there is not an unlimited amount of money available. Every time we increase the eligibility then there will be an effect in demand and we must ensure we can provide the service to those people who will qualify. These are very important questions and I am grateful to the Senator for bringing the matter up. If we are bringing a proposal we would be very happy to circulate it to the committee for its consideration also.

Martin Conway (Fine Gael)
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If we are all still here in 12 months time perhaps the Chairman might ask Mr. O'Leary to come back to the committee to reflect on his year as chairman of the Legal Aid Board.

Caoimhghín Ó Caoláin (Cavan-Monaghan, Sinn Fein)
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We can give consideration to that, if Mr. O'Leary is available. With no other members indicating I will make a very brief comment. I strongly endorse the views of members with regard to the issue of greater discretion. It is a reality that is needed in a variety of situations as Senator Conway has alluded to. Mr. O'Leary has worked in or given service to the free legal aid sector and the Free Legal Advice Centres, FLAC, previously. As someone who was not exposed to the work of the Legal Aid Board previous to taking up my position, could he provide me with a simpleton's guide in the difference between the role of the Free Legal Aid Centres and the Legal Aid Board? Perhaps Mr. O'Leary could share a crisp explanation of the critical differences.

Mr. Philip O'Leary:

FLAC is a non-governmental organisation, NGO, and a voluntary body. It does fantastic work. I was involved with it for a long time. It continues to do fantastic work. It is a free service and the centres provide a voluntary advice service throughout the State. The centres are probably more involved in the advice side of things than actually providing services in courts. They certainly have a very strong role as an NGO in challenging the Government and society as to where Ireland should be going. It is an organisation I hold in high esteem. The Legal Aid Board is not a free scheme, which is a big difference. It is a means-tested scheme. It is a statutory body that was set up under the Act. It has a significant annual budget and a large and a very committed staff cohort. I am almost overwhelmed when I travel around the State and meet the staff and see their level of commitment and their contribution to the work towards access to justice.

Caoimhghín Ó Caoláin (Cavan-Monaghan, Sinn Fein)
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I think I misrepresented FLAC - it is free legal advice rather than free legal aid, which is a critical difference. I thank all the members who have participated and for their attendance. It was first class. I thank Mr. O'Leary for his engagement with the committee on the matter of his appointment and I wish him every success in his new role. The committee will notify the Minister that we have had this engagement with Mr. O'Leary.

Before I conclude it would be appropriate to mention Mr. O'Leary's predecessor, the former chairman of the Legal Aid Board, Ms Muriel Walls. I commend her for her hard work and dedication to the role, and those board members who have given service previously. As Mr. O'Leary has indicated, he is the one continuing. I do not have all their names here but I acknowledge the contribution they have made. I wish Mr. O'Leary and the new team every success in the time ahead. Gabhaim buíochas leis an bhfinné arís as ucht bheith i láthair an choiste ar maidin.

I shall suspend the meeting to allow Mr. O'Leary to depart with his colleagues and welcome them to the Visitors' Gallery. Will then go in to private session to deal with the ordinary business of the committee.