Flac news autumn 2015

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  • flacNewsI S S N 0 7 9 1 4 1 4 8 l V O L U M E 2 5 l N U M B E R 3 1 2 0 1 5

    F R E E L E G A L A D V I C E C E N T R E S

    In September 2015 Lydia Foy was finallyrecognised in the female gender shehas lived in for 23 years. She wasissued with a Gender RecognitionCertificate 22 years after she first appliedfor a new birth certificate in March 1993 she still has the reply she got at that time,saying that her request was underconsideration. FLAC has been honouredto represent Lydia for 19 of those years.

    On 8 September, Social ProtectionMinister Joan Burton had launched theapplication process that allows trans -

    gender (Trans) persons to be recog nisedin their preferred gender. It was anemotional occasion for Lydia Foy andmembers of the Transgender EqualityNetwork Ireland (TENI) who werepresent for the launch. For the first timein their lives they were officially recognisedas who they are by the Irish state.

    The Gender Recognition Act was finallypassed by the Oireachtas on 15 July 2015and the commencement order bringing itinto effect was signed by the Minister on 4September. Because President Higgins had

    signed the Marriage Equality amendmentto the Constitution a few days earlier, thecommencement order dropped a con -troversial requirement that married Transpersons would have to divorce as a pre-condition for recognition.

    Trans persons who have received GenderRecognition Certificates will still have toapply for new birth certificates, but thatwill essentially be a formality.

    This outcome has been a huge achieve -ment for Lydia Foy. It would not have

    Victory at last for Lydia Foy:Trans people win right to legal recognition

    Minister for Social Protection Joan Burton TD, Lydia Foy, FLAC Senior Solicitor Michael Farrell

    Continued page 3

    Photo: Cyril Byrne / Irish Times

    FLAC News Autumn 2015 PROOF 2_FLAC05 vol15no4 13/10/2015 15:21 Page 1

  • flac News | Vol. 25, No. 3

    Victory at last for Lydia Foy: Trans peoplewin right to legal recognition 1 & 3

    Lydia Foy receives birth certificate after 22 year legal battle 2

    New guides to social welfareoverpayment launched 4

    Social welfare case update: Arrears of benefits paid to asylum seeking parents following appeal 5

    FLACs Annual Report 2014 showscontinued rise in housing enquiries 6-7

    Legislate in haste, repent at leisure? 8

    Growing numbers hit by restrictive civillegal aid scheme during crisis 9

    PILA update: 10-11Changing Ireland, Changing Law SeriesIreland in focus PILA Seminar: The Duty of the State inConstitutional CasesMeeting of European Pro BonoClearinghousesLabour of Love campaign on 11domestic workers UN examination of Ireland on economic,social and cultural rights: additionalresources 11

    Focus on FLAC: Athlone and Mullingar FLACs 12-13Ciarn Finlay, Legal & Policy Officer 13

    Jury out on personal insolvency law 14

    Irelands Universal Periodic Review 2016:A peer review of how Ireland is meetingits human rights obligations 15

    Save the Date Dave Ellis MemorialLecture 2015 16

    Secure the future of equal access to justice Join the Friends of FLAC 16

    New guide to law on top-up loans fromlicensed moneylenders 16

    FLAC News is published quarterly byFree Legal Advice Centres Ltd., 13 Lower Dorset Street, Dublin 1.Editors: Yvonne Woods & NoelineBlackwell.

    Contributors: Emer Butler, Naoise Duffy, Deborah Dwyer,Michael Farrell, Ciaran Finlay, JessicaGibbons, Catherine Hickey, Paul Joyce,Eithne Lynch, Rachel Power, Lisa-MarieSalley, Yvonne Woods

    Photos: FLAC, Cyril Byrne, Paula Geraghty,Derek Speirs

    Layout & Print: Printwell Design, D3ISSN 07914148

    The views of individual contributors donot necessarily represent the views ofFLAC.

    2 F L A C N E W S l J U L Y S E P T E M B E R 2 0 1 5


    Lydia Foy receives birthcertificate after 22 year

    legal battle

    On Friday 25 September, withthe last barrier to recognitionof her gender removed, trans -gender champion Lydia Foy un veiled herbirth certificate, giving her full recog -nition in Ireland for the first time andending her 22-year legal battle. Dr Foysaid This is a great day for me and forthe Trans community in Ireland. Withthis piece of paper and after 22 years ofstruggle, my country has finally re -cognised me for who I really am, not forwhat other people think I should be.

    That same day, Dr Foy was honoured bythe European Parliament, having beennominated by Sinn Fein MEPs for theEuropean Citizens Award for 2015. Sheis the only Irish recipient of this award,which she will receive at a ceremony inBrussels in October. In a reception inDublins National Gallery, Lydiaaccepted a Medal of Honour from theParliament presented by the four SinnFein MEPs Martina Anderson, LynnBoylan, Matt Carthy and Liadh Ni Riada.

    Lydia was deeply honoured to be giventhe European award which sheregarded as a tribute to all those whohave helped Trans people to becomeequal citizens of this State. She thankedFLAC and the many others who helpedto ensure that the Act was one of themost progressive transgender laws inEurope.

    Paying tribute to Lydias courage, FLACSenior Solicitor Michael Farrell said:Without Lydia there would be noGen der Recognition Act. And without

    her long and painful struggle, anothergenera tion of transgender peoplewould have to endure the hardship, fearand lack of understanding that Lydiasgenera tion experienced, before theycould be recognised and respected asequal citizens in this country.

    FLAC Director General Noeline Black -well said Lydia has shown extra -ordinary bravery and sacrifice as alitigant in the public interest. This awardis an exceptional honour from Euro -pean Parliament and is thoroughlydeserved by Lydia.

    As a legal rights body, FLAC is proud tohave been part of this historic, ground-breaking case. There will be coverage ofthe Brussels award ceremony in thenext issue of FLAC News. More athttp://bit.ly/foy_medal

    Lydia Foy with her new birth certificate.

    Lydia with some of the legal team which helped her win her legal case for recognition:Bill Shipsey SC, Siobhan Phelan BL, Lydia Foy, Maureen Maguire-Gourley, Michael Farrell

    in this edition...

    FLAC News Autumn 2015 PROOF 2_FLAC05 vol15no4 13/10/2015 15:21 Page 2

  • flac News | Vol. 25, No. 3

    F L A C N E W S l J U L Y S E P T E M B E R 2 0 1 5

    happened without her and the legal caseshe started in 1997, represented by FLAC.It was a hard, lonely and deeply painfuljourney for Lydia. It involved her comingout as a Trans person in an Ireland thathardly knew what a transgender personwas. It was a period of intense conserva -tism about gender issues and hostility toanyone who challenged the status quo.

    Lydia Foy was subjected to ridicule andabuse in sections of the media and in thestreets and she lost the first of three legalcases she had to take, when the HighCourt held in 2002 that there was nothingin Irish law or the Constitution that couldassist her. That was a dark moment for herand most people in her situation wouldhave given up, but Lydia struggled on.

    The tide began to turn when the EuropeanCourt of Human Rights ruled, just twodays after the decision in Lydias case, thatTrans persons had a right to be recognisedin their preferred gender and when theEuropean Convention on Human Rights(ECHR) Act brought the ECHR directlyinto Irish law in 2003.

    Lydia took a second case and in 2007 theHigh Court held that the lack of anyprovision for recognising Trans personswas incompatible with the ECHR and inbreach of Lydia Foys rights under theHuman Rights Convention.

    Even then, it took another eight years anda third court case before the law waschanged. But by 2007 things were changingand Lydia was no longer on her own. Hertwo cases had spread awareness of Transrights and the fact that Ireland was theonly EU country that did not recogniseTrans persons. The Trans community hadbegun to organise, led by TENI; and FLAC,TENI and the LGBT community generallywere all campaigning for gender recog -nition. Ireland was changing too. Civil part -nership was introduced in 2010 and theGovernment had promised to hold areferendum on Marriage Equality in 2015.

    Lydia struggled on, buoyed up by growingsupport. When legislation had not beenintroduced by the beginning of 2013, shefelt obliged to issue new proceedings.However, the Government had got themessage and the third legal case wassettled at the end of October 2014 whenthe Government undertook to enact theGender Recognition Bill early in 2015.

    In the end it actually took a little longerthan expected but the delay was worth it.

    The original Bill was flawed and veryrestrictive. TDs and Senators from the fullrange of the political spectrum, many ofwhom had met with Trans activists to learnmore about the reality of life without legalrecognition, pressed for changes. The resultwas a law that allows self-determinationfor Trans persons with no requirement formedical evidence for people over 18. Inthat respect it is one of the most liberalTrans rights laws in Europe. There are gapsin the Act, which has very onerousrequirements for young people between16 and 18 and no provision for Transchildren or intersex persons but there is atwo-year review provision which will give achance to remedy this quite shortly.

    Lydia Foy is owed a huge debt by the Transcommunity and by the whole of Irish soc -iety. She has saved a younger genera tion of

    Trans persons a lot of the isolation andsuffering that she herself had to go throughand she has helped to make Ire land a moretolerant and compassionate place.

    FLAC is proud that we have been able toassist and support Lydia Foy in her longstruggle, which has also shown how thelaw can be used in the public interest, tovindicate the rights of vulnerable people.We are grateful and appreciative too forthe work of TENI and the Trans and LGBTcommunities because where social changeis required, it is rarely enough to win casesin court. There must be popular pressureas well to get governments to implementthe decisions of the courts.

    But most of all we must salute Lydia Foyherself, who has spent a third of herlifetime in this lonely battle with all itsemotional stress and pain. She has donethe State some service. However, no-oneelse should have to go through such a longand difficult ordeal just to secure the rightto be her or himself. In that connection,the history of Lydias case shows that theECHR Act needs to be greatly strength -ened if it is to be an effective instrumentfor protecting the rights of othermarginalised and vulnerable groups.

    FLAC would like to express its thanks toformer FLAC solicitors Mary Johnson,Maureen Maguire Gourley and EleanorEdmond, and to counsel Bill Shipsey SC,Gerard Hogan SC (now Mr Justice Hogan),Eileen Barrington SC and Siobhan PhelanBL for their dedicated work on the Foycase over the last 18 years.


    Continued from front page

    Victory at last for Lydia Foy

    Lydia with FLAC staff and interns

    Lydia Foy and Michael Farrell

    FLAC News Autumn 2015 PROOF 2_FLAC05 vol15no4 13/10/2015 15:21 Page 3

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    flac News | Vol. 25, No. 3

    New guides to social welfareoverpayment launched


    On 20 July, FLAC and CommunityLaw & Mediation (CLM) jointlylaunched two guides to the lawunderpinning the recovery of socialwelfare overpayments. The guides areaimed at helping people to understandtheir rights and obligations when a claim ismade by the Department of SocialProtection for return of money which theDepartment says has been overpaid.

    Overpayments can result from

    t an error made by the claimant or theDepartment,

    t the claimant not informing theDepartment of a change incircumstances or

    t the claimant intentionally giving falseinformation to receive a payment.

    FLAC and CLM regularly receive querieson the issue of social welfare over -payments. Last year, 13.5% of calls aboutsocial welfare to FLACs telephoneinformation line were on overpayments the third highest area of enquiry on socialwelfare matters - with a further 6.8% ofpeople asking about fraud. It is hoped thatthe two guides will assist people and theiradvocates in dealing appropriately andpromptly with an overpayment claim.

    The shorter info sheet is a user-friendlydocument which explains what to do ifthe Department makes an overpaymentclaim against a person. In addition, it offersbasic information on how the debt can berecovered, how much the Department isentitled to recover and what issues theSocial Welfare Appeals Office will considerif the decision of the Deciding Officer ischallenged.

    The longer, more detailed guide isintended for use by advocates. Itsummarises, in practical terms, thestatutory framework that gives theDepartment of Social Protection theauthority to decide that a claimant hasbeen overpaid, and what steps a claimantmight take if disputing such a decision. Itthen examines the Departments debtrecovery powers in the event that the

    claimant is found to owe a debt. The guidealso outlines the important proceduralsteps and actions to be taken by a claimantto either challenge a decision in the firstinstance, or alternatively, to reach asustainable debt repayment arrangement ifappropriate.

    While both FLAC and CLM accept thatthe State must be able to recover moneywhich has been unlawfully or incorrectlypaid out, they are concerned that people -many of whom are on low incomes or arereliant on social welfare - are being hitwith sizeable claims that could leave themat risk of deprivation or even destitution.Where they claim an overpayment, theDepartment of Social Protection candeduct up to 15% of a persons net weeklyearnings without their consent and, if theperson involved consents, they can deductmore.

    Whilst a 15% deduction may not, at firstglance, seem overly demanding, it may wellbe asking too much from a person who isdependent on social welfare for his or hersole income. For example, where a 15%deduction is made from a persons socialwelfare payment, this will in many casesmean that his or her income falls belowthe relevant Supplementary Allowancerate. The Supplementary Welfare Allow -ance rate is the level which theGovernment itself considers to be a basicminimum.

    People under the age of 26 are atparticular risk of falling beneath thisminimum threshold given the reducedSupplementary Welfare Allowance andJobseeker Allowance payments availablefor claimants between the ages of 18 and25 years. It is also relevant to note that ifthe Department is recovering a debt byreducing a persons social welfarepayment, that person is not entitled toapply for Supplementary WelfareAllowance to top-up his or her income.Therefore, a persons means may not besufficient to meet their needs.

    Some key points from the guides forcla...