Lynn Boylan (Sinn Fein)
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I thank the Minister of State for coming into the House today to address what I see as a very urgent issue. It has come to my attention that under the Civil Legal Aid Act 1995 housing assistance payments, HAP, including homeless HAP, are being taken into account as a means or an income when a person applies for civil legal aid. I am sure the Minister of State, in his role in the Department of Housing, Local Government and Heritage, knows that HAP and homeless HAP are never paid to the tenant; they are paid directly to the landlord. How can they possibly be taken into account as an income? This is a deeply unfair interpretation of the law and it is denying many people who are already in precarious situations access to justice.

In order to qualify for HAP, one must be eligible for social housing. Eligibility for social housing is already means-tested and predicated on a person being on a low income. In a private rental system where a tenant is in receipt of HAP, the tenant pays their portion of the rent and HAP is then paid directly to the landlord to meet the shortfall. Calculating this subsidy, which never passes the hands of tenants, as an income is deeply cruel and has a disproportionate impact on women. The majority of people in receipt of HAP are women, as are the majority of single-parent households.

I will outline a hypothetical situation in order that the Minister of State can hear the impact this interpretation of the law is having. A mother with two children, who we will call Ms A, has procured a barring order against an abusive partner. He is ordered to leave the family home. She then changes the rental agreement pertaining to that home to exclude her ex-partner and does the same with her HAP agreement. She initiates proceedings for maintenance and her ex-partner does likewise for access to the children. Her only sources of income are the lone-parent family payment of €275 per week and child benefit. From the €275 she pays a portion of the market rent to her landlord and the balance of the rent is paid as a HAP payment directly to her landlord. However, when she applies for legal aid she is refused because the HAP payment, which she does not receive directly, is being classed as her income. This takes her above the €18,000 threshold and as a result she is effectively denied access to the courts. Without legal aid, and on a lone-parent income, she cannot seek legal advice privately because, as we know, the cost of a one-hour consultation can be anything up to €350 per hour. In these circumstances, Ms A, who is already in a precarious situation, cannot proceed with her application for maintenance and her children will not have their voice heard in respect of the access proceedings brought by their father in a situation of domestic violence.

That is just one example of how the policy of including HAP as income is deeply discriminatory. It is punishing people, most of whom are women, because they are not able to meet the cost of their rent. This is taking place in a situation where there is a housing crisis with some of the highest rents in the European Union. I urge the Minister of State to commit to addressing this issue as a matter of urgency.

Peter Burke (Longford-Westmeath, Fine Gael)
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I thank Senator Boylan for this Commencement matter. I am responding on behalf of the Minister for Justice. The Legal Aid Board provides legal advice under the Civil Legal Aid Act 1995 and the Civil Legal Aid Regulations 1996 to 2017. Section 3(3) of the 1995 Act provides, "The Board shall, subject to the provisions of this Act, be independent in the exercise of its functions." The matter raised by Senator Boylan regarding the housing assistance payment and the civil legal aid scheme is currently subject to judicial review proceedings in which the Minister for Justice is a notice party. As such, the matter is sub judice.

In the circumstances where the courts are the subject of legal proceedings which are currently before the High Court, I hope the Senator will appreciate it would be inappropriate for the Minister to comment on this matter at this time. The Minister, Deputy McEntee, is happy to engage further with Senator Boylan on this matter, on the issues raised by her which she is very concerned about, and on the important and distressing example she has put before the House.

Lynn Boylan (Sinn Fein)
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Given that it is subject to regulations, I hope the Minister will change the regulations to ensure that interpretation is not taken in terms of HAP. How is it legal that the State in one case is treating tenants in local authority housing or that of housing bodies differently from those tenants, eligible for social housing, but who due to the chronic shortage of social housing are forced into the private rental market with a top-up HAP? This is clearly discriminatory.

I also suspect that this is in violation of the European Convention on Human Rights, particularly in respect of Article 6 and right to access the courts. I remind the Minister of State of the European Court of Human Rights ruling in the case of Airey v. Ireland where it found that it would be unreasonable for anybody to be expected to represent themselves in court but because HAP is seen as income, we are forcing people to do just that.

Peter Burke (Longford-Westmeath, Fine Gael)
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I acknowledge the frustration because the case is sub judice.

More generally, while it is recognised that significant and competing demands are being made on the legal aid system, in budget 2021, the Minister, Deputy McEntee, secured an increased provision of more than €2 million for the Legal Aid Board bringing its total funding to €44.6 million for this year, representing a 6% increase. At the same time, the Minister has asked her Department to conduct a comprehensive review into the current civil legal aid scheme which will report shortly.

Pat Casey (Fianna Fail)
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I thank the Minister of State for attending the House. I think he is here more often than I am.