Eoin Ó Broin (Dublin Mid West, Sinn Fein)
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287. To ask the Tánaiste and Minister for Justice and Equality the eligibility criteria for accessing free legal aid for repossession cases; the average time persons are waiting to access the service for repossession cases; the amount of funding allocated to and drawn down by the Free Legal Aid Board in each of the years 2016 to 2018 and to date in 2019; and the amount that has been allocated for 2019. [8131/19]

Charles Flanagan (Laois, Fine Gael)
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I want to start by reiterating the Government’s commitment to providing assistance to persons who may be in danger of losing their home.

Legal aid to defend repossession proceedings is available from the Legal Aid Board, pursuant to the Civil Legal Aid Act 1995, to persons who satisfy the financial eligibility criteria laid down in that Act and in the Civil Legal Aid Regulations 1996 to 2017. Principally, the person must have disposable income of less than €18,000 per annum and disposable capital assets of less than €100,000 (excluding the home in which they live).

The person’s case must also satisfy the merits criteria laid down under that Act. These criteria include if the applicant is reasonably likely to be successful in the proceedings and if having regard to all the circumstances of the case, including the cost to the Board as against the benefit to the applicant, it is reasonable to grant legal aid.

The Deputy should note that in many repossession cases the applicant is unlikely to have any prospect of success as the lender will usually be entitled to orders for possession and sale in circumstances where the mortgage is valid and in arrears. In such circumstances the applicant is unlikely to meet the criteria for the granting of civil legal aid.

However, they may be eligible under the Abhaile Scheme for both financial and legal advice and help to get a solution in place which will resolve their home mortgage arrears and ensure they can stay in their homes, and I deal with this below.

There is no specific funding provided to the Legal Aid Board for the defence of repossession cases nor does the Board break down spending on such cases. This is because legal services in repossession proceedings, where provided, are entirely provided by salaried solicitors in Legal Aid Board law centres who do other legal aid work e.g. family law and child care. Services are therefore provided out of the Board’s general resources i.e. its grant from the Oireachtas and income from contributions and costs recovered.

There is no separate waiting list for repossession cases and the waiting time applicable is the waiting time at the particular law centre to which the person applies. The waiting times at Legal Aid Board law centres as at 31^stJanuary 2019 are set out as an appendix.

I must clarify that the Legal Aid Board is tasked with providing civil legal aid. In most cases this legal aid is not free. While services provided pursuant to the Abhaile scheme are free of charge as they are provided to insolvent persons, most applicants (including those seeking legal services to defend repossession proceedings) pay a contribution for legal advice and a further contribution if they require representation in court.

In addition, the Deputy will be aware that insolvent persons seeking legal advice and assistancein relation to repossession proceedings against their home may be able to avail of such advice through the Abhaile scheme, which is the Government’s free mortgage arrears support service, launched by the Government in October 2016.

Abhaile is not focused on bringing challenges to repossession proceedings because in most cases this will not help the borrower, for the reasons explained above. Instead, Abhaile focuses on solving the borrower’s substantive problem, by getting in place a solution to the arrears themselves – at the same time, keeping the borrower in their home and helping them back to solvency. This is a far more sustainable and effective focus for public intervention – both more effective for borrowers, and better for taxpayers.

Abhaile does provides legal aid for a borrower to seek court review under section 115A of the Personal Insolvency Act 2012 (as amended), where creditors refuse a reasonable personal insolvency proposal put forward by the borrower that includes their home mortgage arrears. In the year to July 2018, 64% of such cases were decided in favour of the borrower.

The legal advice and assistance services provided under Abhaile to borrowers regarding home mortgage arrears include advice on repossession proceedings against the home and are as follows :

- A solicitor consultation service, which provides a free legal advice consultation to provide the borrower with independent legal advice on the borrower’s best options for sustainable resolution of the mortgage arrears on their home and on any repossession proceedings affecting the home, with written confirmation of that advice to the borrower. A second consultation is also available under Abhaile, where justified;

- A duty solicitor service, which provides advice and assistance to unrepresented borrowers facing repossession proceedings at county registrars’ courts. With leave of the Court, this can include applying for adjournment to facilitate the borrower getting a solution into place, and speaking for the borrower in court. In addition, MABs court mentors are at court to provide information and support to unrepresented defendants.

The eligibility criteria for the advice and assistance elements of Abhaile are that the person must be:

- insolvent (as defined under the Personal Insolvency Act 2012: i.e. ‘unable to pay their debts in full as they fall due’);

- in mortgage arrears on the home in which they normally reside (principal private residence);

- at risk of losing their home (e.g. they have received from the mortgage lender repossession proceedings, a letter indicating that such proceedings will issue, a letter indicating that they are deemed non-cooperating, or an invitation to consider sale, surrender or other loss of all or part of the home); and

- reasonably accommodated (i.e. the costs of continuing to live in the home are not disproportionately expensive having regard to the needs of the borrower and their dependants).

The Deputy should note that a person admitted to the Abhaile scheme does not need to wait before they are seen by a solicitor for legal advice.

Appendix – Waiting times at Legal Aid Board Law Centres as 31^stJanuary 2019