flac NewsI S S N 0 7 9 1 4 1 4 8 l V O L U M E 1 6 l N U M B E R 3 l J U N E - S E P T E M B E R 2 0 0 6
Substantialrevision oflegal aidmeans test:A lot done,more to do?
They were a long time com-ing but, finally, the new civillegal aid regulations wereunveiled on Friday, 1 September.Given that the means test has notbeen revised since 2002 (havingbeen introduced in 1996), any-thing but substantial changes inthe disposable income limits andthe allowances would have beena major disappointment.
Nonetheless, FLAC welcomes thechanges, many of which were sug-gested in its 2005 report on civillegal aid in Ireland, Access toJustice: A Right or a Privilege?
A synopsis of the principalchanges in the means test is asfollows:
8 The disposable income limit toqualify for the service hasrisen from 13,000 to18,000, an increase of 38%and an acknowledgement thatthe previous limit was hope-lessly outdated, excludingmany deserving applicantsover recent years.
8 There have been a number ofincreases in the allowancesthat applicants are allowed to
set against their net incomebefore arriving at disposableincome. These include a sub-stantial increase in theallowance for actual childcareexpenses to pursue employ-ment from 1100 per child to6000 per child, increases inthe allowance for a spousefrom 1900 to 3500 and foreach child dependant from1100 to 1600.
8 The allowance for accommo-dation costs has gone up from4900 to 8000, a substan-tial increase on paper but
F R E E L E G A L A D V I C E C E N T R E S
Indian human rights activist and lawyer Colin Gonsalves visitedFLAC in Dublin in September and gave two information sessions
on public interest law and litigation in India: see page 10.
(continued on back page) 8
flac News Vol. 16, No. 3
F L A C N E W S l J U N E - S E P T E M B E R 2 0 0 622
iinn tthhiiss eeddiittiioonn......
Substantial revision of legal aid means test:A lot done, more to do? 1 & 16
Mothers receive child benefit even if residenceapplication not decided 2
Statutory Ombudsman forfinancial services nowavailable to consumers 2
The case for same-sexmarriage in Ireland 3
FLAC seminar series on public interest law 4
Roundtable on publicinterest law 6
Cautious welcome for proposed abolition ofRefugee Appeals Tribunal 8
Renowned Indian humanrights lawyer & activist visits Dublin 10
Child benefit & child rights 12
Child benefit & HabitualResidence Condition 14
Focus on FLAC staff:Catherine Hickey,Director of Funding &Development 15
FLAC News is publishedquarterly by the Free LegalAdvice Centres parenFLACparen, 13 Lower Dorset Street, Dublin 1.
Layout: Yvonne Woods
Contributors: NoelineBlackwell, Rhea Bohan, EdelHackett, Catherine Hickey, Paul Joyce, Gretchen Ransow,Marcela Rodriguez-Farrelly,Yvonne Woods
Photos: FLAC, KAL Initiative,Derek Speirs
The dilemma of families wherean application for residencehad not been decided onarose in some cases investigated byFLAC over the past number ofmonths and has enabled us to makea further clarification which shouldassist a wider number of families.
In these cases, a childs mother wasrefused benefit on the basis that herresidence application had not beendecided, but the childs father wouldhave had no difficulty proving resi-dence within the meaning of theHabitual Residence Condition(HRC). On our request for review,the decisions to refuse benefit to themother were reversed and benefitand arrears were paid to thosewomen.
FLAC is pleased to learn that theDepartment of Social and Familyaffairs has now made a decision thatin all cases where one parent is fullyresident for the purposes of theHRC, Child Benefit will be paid to themother based on the family unitconcept. We are also told thatcases refused in the past are cur-rently being reviewed. This decisionneeds to be publicised widely.
8 Readers who are aware ofsuch cases should alert people who have beenrefused to seek an immediatereview, as they may nowreceive Child Benefit plusany arrears due to them.
8 Also: See article on pages 12,13 and 14 on Child Benefitand the Habitual ResidenceCondition.
Mothers receivechild benefit
even if residence
Services available to consumers
Astatutory Ombudsman forFinancial Services has nowbeen in operation and receiv-ing complaints from 'eligible con-sumers' since 1 April 2005. An eligibleconsumer includes not just personalcustomers but also charities, clubs,trusts and partnerships. It alsoincludes limited companies providedtheir turnover does not exceed 3million annually.
Complaints may be made in relationto the conduct of any 'regulated finan-cial service provider' and this defini-tion includes a wide variety of entitiessuch as credit institutions, insurancecompanies, credit unions, money-lenders, hire purchase companies,stockbrokers and insurance, creditand mortgage intermediaries. Suchcomplaints may concern the provi-sion of a financial service, an offer toprovide such a service or a failure orrefusal to provide a service.
Where a complaint is upheld, theOmbudsman has the power to directthat a specific action be taken by theservice provider and may award com-pensation to the claimant up to amaximum of 250,000.
In general, if you are unhappy withthe way that a financial serviceprovider has dealt with you, you willbe required to exhaust their internalcomplaints procedure first. TheOmbudsman's website (www.financialombudsman.ie) providescomprehensive details on the proce-dures that a complainant needs to fol-low to pursue their grievance. TheOmbudsman's office may also becontacted at 1890 88 20 90 or 01-6620899 or by e-mail email@example.com
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On 3 October this year, DrsKatherine Zappone and AnnLouise Gilligan will arrive atthe High Court to present their casefor legal recognition of their existingCanadian marriage, usually calledthe KAL Case. If their case is suc-cessful and civil marriage is recog-nised, Ireland will join theNetherlands, Belgium, Canada,Spain, the US State ofMassachusetts and South Africa(from the end of 2006) as jurisdic-tions in which same sex couples canenjoy true equality in society.
Drs Zappone and Gilligan will seekvarious remedies before the HighCourt. In particular, they will seek adeclaration that, in failing both torecognise their Canadian marriageand to apply tax law provisions formarried couples to them as a mar-ried couple, the State and theRevenue Commissioners have actedunlawfully, in breach of their constitu-tional rights to equality, to marriage,to property rights and family rights1and in breach of their rights to priva-cy, marriage and non-discriminationunder the European Convention onHuman Rights.2
Beyond the direct needs of the plain-tiffs, however, this case is about fair-ness and equality for all members ofthis society its fundamental empha-sis is on respect for the rights of all toshare their lives in an atmosphere ofsocial and economic stability.
In recent years there has been enor-mous change in family structures inIreland; the numbers of those cohab-iting have increased dramatically. In1996, cohabiting couples made up4% of all family units (31,300), but by2002 this figure had more than doub-led, to just over 8% of all family units a total of 77,600 couples. Whilestill small in relative terms, the num-ber of same-sex cohabiting coupleshas also increased very considerablyfrom 150 to 1,300 since 1996.3
The number of children living withcohabiting rather than married par-ents has increased from 23,000 chil-dren in 1996 to 51,700 children in2002. The percentage of births out-side marriage now stands at justover 31%, that is, almost one-third ofbirths, compared with just over one-quarter (25.3%) in 1996.
Despite these immense socialchanges, the marital family remainsthe only officially recognised unit inIrish law. In the 1937 Constitution,the family is recognised in Art. 41 asthe natural primary and fundamentalunit group of society. But this hasbeen interpreted to mean the familybased on marriage only. Single par-ent families and co-habiting same-sex or heterosexual couples areexcluded from this definition.
Ultimately, cohabiting couples con-tinue to be treated as strangers inthe eyes of the law their citizen-ship, property and inheritance rights,tax status or medical records, forexample, do not reflect their true lifesituation. For same-sex couples the
discrimination runs even deeper,where adoptive rights or visitingrights are disregarded and where,critically, there is no option to changetheir status from single to married.The option is always open to hetero-sexual couples.
This constitutional discrimination hasbeen reinforced with the recommen-dations of the All-Party OireachtasCommittee on the Constitution. It tookthe view4 that an amendment toextend the definition of the familywould cause deep and long-lastingdivision. Instead, the Committee pro-posed to deal with the diversity offamily forms through a number ofother constitutional changes and leg-islative proposals, including, critically,civil partnership or a presumptivescheme for cohabiting heterosexualcouples and civil partnership legisla-tion for same-sex couples.
Contrary to this view, however, theOntario Court of Appeals in the land-mark case Halpern v Canada5,6replied to an intervener organisations
The Case for Legal Recognition of Same-Sex Marriage in Ireland
flac News Vol. 16, No. 3
Dr Katharine Zappone parenleftparen and Dr Ann Louise Gilligan, pictured