The High Court has dismissed Marie Monahan’s claims against the Legal Aid Board over its refusal to grant her civil legal aid, finding that the Board correctly applied the rules on dependent allowances and financial eligibility.
In a judgment delivered on 6 October 2008, Mr Justice John Edwards decided two statutory interpretation issues in a judicial review concerning Monahan’s application for legal aid to pursue a claim for a new tenancy at her family home on Oxmanstown Road, Dublin 7. The court did not determine the remaining claims against the other respondents, and said it would hear further submissions on how those proceedings should continue and on costs.
Monahan and her sister, Carol, were seeking a new tenancy after Folio Homes Limited served Carol with a notice to quit in October 2006. Monahan was refused legal aid after the Board assessed her disposable income above the €18,000 annual limit. Her sister was approved for aid and was represented in the tenancy proceedings; Monahan said she could not afford representation and was concerned about the effect of a new lease in her sister’s name on her own housing rights.
The Board initially refused Monahan’s application in February 2007, assessing her income at €18,217.12. After the Board agreed to reconsider the application because of procedural shortcomings, it refused aid again in December 2007, calculating disposable income at €18,536.92. An appeal was rejected in January 2008. The judicial review was amended to challenge those later decisions as well.
Monahan argued that her nephew should count as a dependant for the purpose of an allowance in the means assessment, and that the Board had discretion under section 29(2) of the Civil Legal Aid Act 1995 to grant aid without reference to her financial resources. The Board argued that a dependent allowance required the person to live with and be supported by the applicant, without independent means of support, and that its power to grant aid outside the means test could be exercised only in accordance with regulations.
The judge held that the Board had correctly interpreted the dependent allowance rule. The evidence before the Board showed that Monahan’s sister received One-Parent Family Payment from 2 November 2006, including an amount for her son. The court concluded that the sister and nephew had independent means of support for the purposes of the regulation, so Monahan was not entitled to an allowance for them.
The court also held that section 29(2) did not give the Board a general discretion to waive the means test where regulations made no provision for doing so. As Monahan’s assessed disposable income exceeded the threshold, the Board had no power under the applicable rules to grant her legal aid. The judge dismissed her claims against the Board, reserving costs and the future conduct of the other parts of the case.