Lynn Boylan (Sinn Fein) | Oireachtas source

I thank my colleague for saving the day. I think everybody in this country would agree that the civil legal aid system is in drastic need of reform. It is not just the issue we are discussing today. It is under resourced and restrictive. There are delays of up to 42 days, according to the Free Legal Advice Centres, FLAC. Access to justice is a fundamental human right and is recognised as such under a range of regional and international instruments, including the European Convention on Human Rights and the EU Charter of Fundamental Rights.

Equal access to justice means that everyone should have equal access to the courts as a matter of law and as an element of social inclusion and cohesion. Those who have rights must have a way of enforcing them that is effective and meaningful. Therefore, it is acceptable that the right to legal aid is available. After all, following on from the Airey v.Ireland judgment, the Civil Legal Aid Act was put in place to give effect to the finding of the court that it is unreasonable to expect somebody who is untrained to represent himself or herself in court.

While I am aware that there is a review under way by the Department of Justice into the entire civil legal aid scheme - we could spend hours debating how we could make a civil legal aid scheme fit for purpose - I was motivated to draft this Bill and bring it forward out of sheer frustration at the lack of willingness on the part of the Government to address the very discriminatory interpretation of the legal aid regulations. Assessing HAP is income when accessing civil legal aid is deeply mean-spirited. As everyone knows, HAP is paid directly to landlords and tenants never receive the money.

In order to be eligible for HAP, a person has to meet the financial eligibility criteria for a local authority housing. However, given the mismanagement of housing by successive Governments, there is a chronic shortage of public housing. The Government has instead outsourced its housing responsibilities to the private sector. As and from 24 May, there were 61,716 HAP households and a further 12,159 homeless HAP households. HAP is no substitute for secure tenure and many who are renting in HAP properties are supplementing the payment because the caps are not in line with market rates. This inevitably means that HAP tenants are getting by on very low household incomes. However, when they find themselves in need of civil legal aid in the family courts, they are being discriminated against.

In response to a parliamentary question in July last year the then Minister for Justice, Deputy McEntee, said that taking into account the regulations, and in the absence of any provision specifically excluding housing assistance payment as income, the Legal Aid Board is required to take HAP into account as a form of income. In a follow-up response in September, she went further and specifically referenced section 15(1)(e) of the regulations. This section refers to free or partially free board being classed as a benefit-in-kind and the Legal Aid Board has interpreted HAP as the monetary value of that benefit-in-kind.In February, I raised this issue again as a Commencement matter. I pointed out how it was disproportionately impacting on women and survivors of domestic violence. On that occasion, the Minister said the matter was subject to a judicial review and, therefore, it would be inappropriate to comment further. I find it quite telling that two days ahead of a Sinn Féin Private Members' Bill being debated, and following a Cabinet meeting, the Legal Aid Board was instructed by the Minister of State, Deputy Naughton, to issue updated guidelines to its external consultative panel. The memo states there is now an alternative interpretation of the regulations available that allows the board to disregard all State housing support payments, including HAP. The memo also states the board will now seek to identify recent applicants who have been affected and will encourage them to make a fresh application.

On news of these amended guidelines, I was able to contact some of the women who have been directly impacted by the callous interpretation of HAP as income and I can tell the Minister of State that the relief was palpable. Call me cynical but how is it that for a full year we had been told that without a change to the regulations nothing could be done? Why is it that as recently as February the Minister said nothing could be done until the judicial review was completed? It should not have to take a Private Members' Bill from me for the Government to have a Damascene conversion. We are now told that not only do we not have to wait for the judicial review to conclude but that a change to the regulations is not even necessary. All that was needed was an update to the guidelines. Politics is about choices and I cannot help but conclude the Minister was choosing not to issue legal aid to some of the most vulnerable people and that the Legal Aid Board was choosing to interpret HAP as a benefit-in-kind to save on what is a stretched budget.

While I absolutely welcome the U-turn by the Government and the updated guidelines issued by the Legal Aid Board, I can tell the Minister of State that a lot of women slept easier knowing they would not be forced to represent themselves in court. These are women who had fled domestic violence situations and found a new home for themselves and their children but when they tried to build a new life by seeking maintenance, separation or access they were told by the Legal Aid Board they would have to face their abusers in court by themselves.

While it disproportionately did impact on women, men were also impacted by this interpretation of HAP. Men who had to fight through the courts to be accepted for HAP to gain overnight access to their children found they had to defend themselves in court. Only today, the ESRI issued a report stating the breakdown of family relationships is one of the key triggers for pushing children into poverty. For the past number of years, this interpretation of HAP as income has led to deepening and worsening relationships within families. It has pushed women to loan sharks. It has further abused survivors of domestic violence.

I welcome the U-turn but I also ask the Minister of State what she will do to ensure all those who have been impacted to date by this decision will be notified. What will she do to ensure they will have their legal aid cases expedited? What will we do to review the impact this has had? One of the women I spoke to was at real risk of losing custody of her child and she was terrified about going in and representing herself in court. Will the Department conduct a review to assess the impact the interpretation in place until Friday has had on those very vulnerable households?