Complainant

Respondent

Parties

Jana  Gogova

Legal Aid Board (Jervis Street) Law Centre

Representatives

  Self-represented

 Patrick Marron BL

Act

Complaint/Dispute Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under Section 21 Equal Status Act, 2000

CA-00051251-001

21/06/2022

Complaint seeking adjudication by the Workplace Relations Commission under Section 21 Equal Status Act, 2000

CA-00051251-002

21/06/2022

The complainant is an applicant for legal aid and a jobseeker.  She was a student between March 2019 and July 2021. 

The complainant made an application to the Legal Aid Board – Jervis Street Law Centre on 19 October 2021.  The complainant claims she was refused legal aid and legal representation in an appeal she had brought against a determination of the Residential Tenancies Board (RTB). 

The complainant asserts that in refusing legal aid and representation the respondent discriminated against her on the grounds of race, civil status, family status and being a recipient of Housing Assistance Payment (HAP).  The first incident of discrimination is stated to have occurred on 18 May 2022.  The complainant sent an ES1 form to the respondent on 31 May 2022.  The complainant submitted a complaint to the Workplace Relations Commission on 21 June 2022.

The respondent denies all allegation of discrimination as alleged by the complainant.  The respondent delivered an ES2 form to the complainant on 29 June 2022.

CA-00051251-001

The complainant ticked the box on the complaint form that states “An employment agreement containing a provision which is discriminatory.  (Employment Equality Acts 1998 – 2011.”  This was clearly an error as the complainant struck out Employment Equality Act and wrote Equal Status Act.  The complainant did not present any case concerning employment at the hearing.

CA-00051251-002

Complaint submitted under the Equal Status Act, 2001.

The complaint states that she was unjustly treated by the respondent by its refusal to provide her with a legal aid certificate in her dispute in the High Court with the Residential Tenancies Board (RTB – previously the PRTB).  A legal aid certificate is a condition of accessing discounted legal representation in High Court proceedings. 

The complainant states that access to legal representation is generally open to all citizens in Ireland but was denied to her.  The complainant states that she was denied access to legal representation because she is of a different race and nationality, being West-Slav and Czech.  In addition, the complainant asserts that she was denied legal representation because she was in receipt of the Housing Assistance Payment (HAP) and is of a single family.

The complainant contends that she suffered discrimination on the grounds of race and being a HAP recipient contrary to sections, three, five and six of the Equal Status Act, 2000.   The complainant wished to reduce her costs in the proceedings against the RTB. 

The complainant is not a solicitor and does not have a knowledge of the legal terms in use in the Republic of Ireland to effectively defend herself in the High Court.  The complainant states that at the beginning of the proceedings with the RTB, in October 2021, she did not know about the forms required or how to make a statutory appeal in the High Court.  She therefore looked for help from the Legal Aid Board.

Timeline of Events

In early October 2021 the complainant contacted the Jervis Law Centre of the Legal Aid Board by telephone. 

07 October 2021

The Law Centre wrote to the complainant enclosing an application for legal services form (form LAA3).  The complainant was asked to complete and return the form if she wished to apply for legal services.  The complainant was asked to provide supporting documentation in order that her financial eligibility could be determined and to verify her identity.  The letter noted that applicants are required to pay a contribution towards the legal services they receive, the minimum contribution being €30 for legal advice and €100 for legal aid (representation in court).  The complainant states that she was surprised that she received only one form, which was in English.  She did not receive a form in Irish, the first language of the Republic of Ireland.  The complainant states that she did not receive a case assessment form at that time.  The complainant submitted her application for legal services on 19 October 2021.

28 October – 01 November 2021

A letter of engagement was sent to the complainant.  The complainant states that she made an application for legal services in the case against the RTB and in another case.  (The other case is not part of this complaint.)  On the same day the complainant sent an email to the Jervis Law Centre requesting help from a solicitor to fill in an application form for an appeal in the High Court.  The Law Centre replied confirming that the complainant had been assessed and deemed financially eligible for legal services.  However, at that time there was a waiting list of 20 weeks for an appointment with a solicitor and it was not possible to give legal advice prior to the first appointment with a solicitor.  It was suggested that the complainant contact FLAC for assistance in filling out a form if the matter was urgent.

The following day, 29 October 2021, the complainant sent another email asking if she could name the Legal Aid Board solicitor in an affidavit and Notice of Motion that she was preparing.  The Law Centre replied on 01 November 2021, stating that a Legal Aid Board solicitor could only be named when a legal aid certificate had been issued.  A certificate could only be issued after a consultation with a solicitor, which would involve a merits test under the Civil Legal Aid Act.  A legal aid certificate would only issue if it was the opinion of the Board that the court case had a chance of success, such that a ‘reasonable’ person would bring the case.  The complainant was referred to Section 27 of the Civil Legal Aid Act.

The complainant contends that a solicitor for the Jervis Law Centre, Ms Gallagher, did not send her a form to gather information about her case and so did not offer her full consideration of the case and the failure to provide a legal aid certificate amounted to discrimination on the ground of race and being a recipient of HAP.  The complainant contends that she was erroneously denied a legal aid certificate in the matter against the RTB, and she suffered nervous shock and extreme stress as a result.

26 April 2022

The Jervis Law Centre arranged for a meeting at the Four Courts.  The meeting was attended by the complainant, Ms Gallagher, and Ms Lane BL.  The complainant contends that she was interrupted when trying to introduce her case.  Ms Gallagher and Ms Lane demanded the documents that had been filed in the High Court in the RTB case.  The complainant states that Ms Lane spoke sharply to her and requested that several documents be delivered to the Law Centre.  Ms Lane asked for the reasons the appeal was not filed on time and whether an extension of time had been sought.  An application under Order 84 C of the Superior Court Rules was discussed.  The complainant referred to the case of Mr & Mrs Gunn brought under the Equal Status Act.   The complainant contends that she was not allowed to present her case at that meeting.

18 May 2022

Ms Gallagher arranged a second meeting at the Four Courts.  This meeting was about the complainant’s other case.  The complainant states that Ms Gallagher asked her if she had read an email that had been sent to her the same day.  The complainant had not and asked what was in the email.  The complainant was told to read the email and letter at home.  The complainant contends that Ms Gallagher was evasive. 

Later that day, at home, the complainant read the email and found that she was not considered for a legal aid certificate in the case against the RTB.  The complainant states that the Legal Aid Board solicitor had refused to grant her the legal aid certificate. The complainant states that she felt unwell on reading the refusal of the much-needed legal advice and she became stressed.  The complainant contends that her plans to secure legal representation to enable her a fair defence in the High Court were crushed by the unjust decision of the Legal Aid Board to deny her a legal aid certificate.

20 May 2022

The complainant went to the Jervis Law Centre to collect all the documents that she had given to Ms Gallagher.  She was not allowed to collect the documents as Ms Gallagher was on leave that day.  The documents could not be returned to the complainant without the knowledge of Ms Gallagher.  The complainant contends that she needed the documents for her next appearance in the High Court on 23 May 2022.

23 May 2022

The complainant’s case against the RTB was scheduled for mention in the High Court.  The complainant received a phone call from Ms Gallagher as she was preparing to leave home for court. The complainant confirmed that she had read the email and the opinion of Counsel dated 18 May 2022.  The complainant states that Ms Gallagher said she could always reapply for a legal certificate again in the future.

The complainant contends that the Legal Aid Board solicitor and barrister failed to provide her with the legal service for the complex case against the RTB.  The complainant contends that the less equal treatment accorded to her, as against another member of the wide public who qualified, resulted from having been discriminated against on the grounds of race and being a recipient of HAP.

31 May 2022

The complainant sent a notification to the respondent under the Equal Status Act (Form ES1)

21 June 2022

The complainant submitted a complaint to the Workplace Relations Commission.

29 June 2022

The respondent replied (Form ES 2) to the complainant.

September 2022

The complainant applied for new legal services to the Jervis Law Centre.  Ms Gallagher refused to consider her application on the ground that the complainant had made a complaint against that Law Centre.  Ms Gallagher redirected the complainant to another Legal Aid Law Centre where she could ask for legal services.

The complainant contends that Ms Gallagher’s conduct was unjust, and that the complainant was treated less favourably than other citizens who qualified for legal aid certificates.

Legal Submission

The complainant acknowledged that she must establish the primary facts on which she relies in seeking to raise a presumption of unlawful discrimination.  She cited the decisions of the Labour Court in Mitchell v Southern Health Board [2001] E.L.R. 201 and HSE North-Eastern Area v Sheridan EDA0820 as setting out the test for establishing a prima facie case of discrimination on the balance of probabilities. 

In the context of the test referred to in the above cited cases the complainant affirms that she belongs to the group of people in receipt of Housing Assistance Payment.  Further, the complainant is of the West-Slav ethnic origin and is of Czech national origin.  The complainant’s first language and mother tongue are Czech.  The complainant is a European citizen who travelled to Ireland to speak, study and work in English.  The complainant is not married.  The complainant is in receipt of the Jobseeker Allowance.  The complainant submits that she was treated less favourably by the respondent than other members of these groups had been or would be in the same circumstances.

The complainant submits that she was twice financially assessed by the respondent.  First, when she submitted her application form in October 2021.  Second, when Ms Gallagher expressed a view that the complainant’s case could cost the Legal Aid Board money.  The complainant paid the first contribution of €30, concerning her case against the RTB, and submitted her documents for review.  The complainant paid a second fee of €30 in respect of another case. 

The complainant submits that on 18 May 2022 the respondent sent a letter by email together with the opinion of counsel and refused to grant her a legal aid certificate in the case against the RTB.  On the same day the complainant attended a consultation with Ms Gallagher and counsel concerning her other case.  The complainant contends that by the refusal to issue a legal aid certificate the respondent discriminated against her on the ground of her housing status and different race.

The complainant submits that her comparator is an anonymous person.  A person who is an Irish national and a part-four tenant and not in receipt of a HAP benefit had a similar dispute against the RTB concerning the termination of a tenancy.  That person was offered legal services and the legal aid certificate because there were Irish and not in destitution, not on job-seeker allowance but on a community employment scheme.

The complainant contends that when she made her application on 07 October 2021, she was asked to wait for twenty weeks with a promise that after that time the Legal Aid Board Jervis Centre would take the complainant’s case and help her in the case against the RTB.  The complainant contends that she was financially assessed and met the threshold criteria of low income to be eligible for the legal aid scheme, but she received less favourable treatment than other members of the public because of the complainant’s race and housing assistance status.  The complainant contends that because she had a low income and no other money the respondent was afraid that if the case was lost there would be costs that the complainant could not meet and would be a cost to the Law Centre.  The complainant submits she was accorded less favourable treatment than other citizens in the same circumstances at that time.

The complainant submits that when the respondent decided to refuse her a legal aid certificate, which is a condition to receive legal representation in the High Court, that amounted to discrimination.  The complainant submits that in such circumstances the burden of proof shifted to the respondent.

The complainant cited the decisions in M.C. v Legal Aid Board [1991] 2 IR 43, Airey v Ireland (1979) 2 E.H.R.R. 305, and O’Donoghue v Legal Aid Board [2006] 4 IR 204. The complainant submits that the State has a responsibility to guarantee that the civil legal aid scheme is governed fairly and objectively.  The complainant contends that because of her application for a legal aid certificate not being considered she suffered financially and endured damage to her health.  The complainant contends that the refusal of a legal aid certificate amounted to a breach of the civil legal aid scheme.  This unequal and less favourable treatment amount to discrimination on the ground of race and housing assistance status.

The complainant submits that because of the refusal of a legal aid certificate and legal representation she did not have an effective right of access to the High Court for the purpose of a statutory appeal from the whole determination order from the RTB concerning the termination notice of her tenancy. 

Conclusion

The complainant requests a declaration that she was discriminated against by the respondent on the grounds of race, civil status, family status, and being a HAP recipient when she was not provided with a legal aid certificate.  The complainant requests an award of compensation against the respondent.

The respondent denies all allegations of discrimination as alleged by the complainant.

The complainant submitted a complaint under the Equal Status Act, as amended, asserting that she was discriminated against by the respondent in the provision of legal services on the grounds of race, family status, civil status and being a Housing Assistance Payment (HAP) recipient.

Background

The complainant brought a complaint to the Residential Tenancies Board (RTB) challenging a notice of termination of her tenancy, served upon her on or about 31 October 2019.  The complaint was referred to adjudication.  A hearing took place on 04 March 2020.  The Adjudicator determined that the notice of termination was valid.

The complainant appealed the decision of the Adjudicator.  A Tribunal of the RTB upheld the decision of the Adjudicator.  A Determination Order was issued to the parties on 04 October 2021.  The complainant received the Determination Order on 05 October 2021.

19 October 2021

The complainant made an application for legal aid.  The complainant’s application for legal services was processed and a letter of engagement was issued to her on 28 October 2021.  (A copy of the letter of engagement was presented with the submission)

The letter of engagement informed the complainant that there would be a 20-week waiting time and advised that if she required urgent advice regarding the filling out of an appeal form, she should contact FLAC. 

12 November 2021

The complainant filed an application, by way of Notice of Motion, seeking an extension of time to make an appeal against the Determination Order of the RTB, issued on 04 October 2021.  The application was returnable before the High Court on 13 December 2021.  The application was adjourned to 24 January 2022 and again adjourned, for mention only, to 25 April 2022.

In or around February 2022 the complainant’s case file was assigned to Ms Ailbhe Gallagher, solicitor with the respondent.  Ms Gallagher felt it would be prudent to gather from the complainant all the documents, to send them to counsel for review.  Ms Gallagher intended to then hold the first consultation with the complainant with counsel in attendance.  Ms Gallagher discussed this approach with the legal services division of the respondent and made a submission for an additional hour to allow for the consultation with counsel.  The submission was approved.

20 April 2022

The complainant was sent an email requesting payment of the legal advice contribution of €30 and informing her:

“Once we receive your fee we will review your case and offer legal advice as to the merits of your applications.

We will advise you if your case satisfies the merits test and whether we are in a position to act on your behalf.”

26 April 2022

A consultation took place with the complainant, Ms Gallagher, and Ms Nollaig Lane BL in attendance.  The complainant’s High Court application had been further adjourned until 23 May 2022.  Following the consultation Ms Lane conducted a comprehensive review of the complainant’s documents, the relevant statutory provision and recent case law.

18 May 2022

Ms Lane delivered Counsel’s Opinion.  Her opinion was that the High Court did not have jurisdiction to extend the twenty-one-day period, prescribed by section 123 of the Residential Tenancies Act, within which the complainant could lodge an appeal.  Accordingly, Ms Lane was of the opinion that the complainant’s application for an extension of time to lodge an appeal in this matter would fail.

In those circumstances, Ms Lane advised that there could be a costs implication for the complainant should she proceed to a hearing of this matter, and that such costs could be quite substantial.

On the same day a further consultation was held with the complainant, Ms Gallagher, and Ms Lane in attendance.  That consultation was primarily about a differ matter.  However, Ms Gallagher informed the complainant that Ms Lane’s opinion concerning the RTB appeal had been sent to her that day by email.  Ms Gallagher advised the complainant to read the opinion and then contact her about the opinion.

The email sent by Ms Gallagher to the complainant included a letter and the opinion of Ms Lane.  In the letter Ms Gallagher set out for the complainant the steps that might be taken by her landlord in the District Court in relation to enforcement of the RTB Determination. (A copy of the letter and opinion were presented with the submission)

20 May 2022

The complainant sent an email to Ms Gallagher concerning Counsel’s Opinion.  Ms Gallagher was away from the office that day on leave. 

23 May 2022

Ms Gallagher emailed the complainant and telephoned her to make her aware of the email.  In the letter Ms Gallagher explained the opinion of counsel and noted that based on that opinion she was not in a position to recommend that legal aid be granted.  However, she emphasised that if the complainant wished to make an application for legal aid, she would make the application on the complainant’s behalf.  The complainant was asked to let Ms Gallagher know if she wished to make an application.  The complainant did not wish to engage with Ms Gallagher on the telephone call and she ended the call. 

Having received the advice from Ms Gallagher the complainant was free to pursue her application for a legal aid certificate in relation to her appeal against the decision of the RTB.  No decision was made to either grant or refuse a legal aid certificate to the complainant in relation to her appeal against the RTB decision.

The respondent continued to provide a legal service to the complainant in relation to another matter before the Workplace Relations Commission.  In that separate matter legal advice was offered but not representation as under the provisions of the Civil Legal Act 1995 it is not possible for the respondent to provide representation at WRC hearings.  Following the commencement of the within complaint the respondent informed the complainant that she would continue to receive advice in relation to the other WRC matter but that her case file would be transferred to a different law centre to avoid any perceived bias or conflict.

31 May 2022

The complainant sent an ES1 form to the respondent.  That was received on 01 June 2022 and the respondent delivered its ES2 reply on 29 June 2022.  Before the expiration of 30 days, the period normally afforded to reply, the complainant submitted a complaint to the WRC on 21 June 2022.

Factual Submission

The respondent makes the following points in relation to the content of the complainant’s written submissions, complaint form and ES1.

It is denied that the was a failure to provide “accurate legal services”.

It is denied that the respondent failed to act “justly and lawfully according to the law and ethics in the Solicitor’s profession” in the matter of the complainant’s High Court application in relation to her RTB appeal.  The complainant has provided no evidence of these allegations.

It is denied that there was a failure to send the complaint the correct assessment form in the English and Irish language.  The complainant was provided with a form in English as are other applicants, unless otherwise requested.  The complainant did not request a form in another language. 

The complainant did not request a form in Irish or Czech.  It is denied that this amounted to discrimination on the ground of nationality and language as alleged.

The complainant was asked by Ms Lane at the consultations on 26 April 2022 and 18 May 2022 whether she needed an interpreter.  She said she did not. 

All allegations of professional negligence, misconduct and malice are denied in the strongest possible terms.  The complainant was at all times treated with professional courtesy, understanding and patience by Ms Gallagher and Ms Lane.

It is denied that the respondent or anyone on its behalf caused the complainant “intentional emotional distress”.

Legal Submission

The criteria for obtaining legal aid are set out in section 28 of the Civil Legal Aid Act, 1995.  The respondent submits that it afforded the complainant considerable time and the expertise of two very experienced legal practitioners who carefully and comprehensively assessed her case.

The conclusion of that assessment was that the complainant had no prospect of success and further would be exposed to a risk of an adverse cost order if she was unsuccessful.

Before a legal aid certificate can by granted the respondent has a clearly defined merit test.  In the instant case there was no doubt that the complainant’s application before the High Court would fail.

The respondent is precluded by statute from progressing litigation which has no hope of success.

Discrimination

The respondent submits that in a complainant of discrimination on any of the grounds specified in the Act it is for the complainant to establish facts from which it may be presumed that the principle of equal treatment has not been applied to them.  The complainant must prove, on the balance of probabilities, the primary facts on which they rely to raise a presumption of unlawful discrimination. The respondent cited the decisions of the Labour Court in Mitchell v Southern Health Board [2001] 12 E.L.R. 201 and Dyflin Publications Limited v Spasic EDA 0823.  It is only when a complainant has established facts from which it may be presumed that discrimination has occurred does the burden of proof shift to the respondent.

The complainant’s case is that the refusal by the respondent to grant her a certificate for legal aid in respect of her High Court application is discriminatory.  The respondent asserts that it did not refuse the grant of a legal aid certificate to the complainant.

The complainant was invited by Ms Gallagher to apply for a legal aid certificate, but she did not instruct Ms Gallagher to so apply.  Ms Gallagher had indicated to the complainant that her recommendation to the Legal Services Section of the Legal Aid Board would be that a legal aid certificate should not be granted.  The respondent has a statutory obligation to use a "merits test” before making a recommendation. 

The respondent submits that the complainant has failed either on her ES1 form, complaint form and her submissions, to establish facts, beyond a reasonable doubt, or at all, to raise any presumption of discrimination on the part of the respondent.

The respondent submits the complainant has not adduced evidence that she was treated less favourably because she was a recipient of HAP.  Neither has she adduced evidence of less favourable treatment because of her race or family status.

The respondent submits that the case cited by the complainant M.C. v Legal Aid Board [1991] 2 IR 43 may be distinguished because the complainant in that case claimed that the failure of the Board to consider her application in sufficient time to allow for the preparation of her case was a denial of her right of access to the courts to defend her constitutionally recognised status of marriage.  In the instant case the complainant’s case was comprehensively assessed, including a review of all relevant documentation, a lengthy consultation and a written Counsel’s Opinion.

Conclusion

The complainant was provided with excellent legal advice which was legally sound and in her own best interest.

Counsel was of the opinion that the complainant’s application for an extension of time was bound to fail given previous decisions of the High Court which determines that the statutory time limit for appealing a determination of the RTB could not be extended.

The complainant was informed that she was entitled to pursue her application for a legal aid certificate.  The complainant did not pursue any such application.

The respondent continued to provide legal advice to the complainant in relation to another matter after the matter complained of within.

The respondent submits that the complainant has not established a prima facie case of discrimination such that the burden of proof has shifted to the respondent to rebut or disprove any inference of discrimination.

CA-00051251-002

Complaint submitted under the Equal Status Act, 2001.

The complainant made an application to the Legal Aid Board – Jervis Street Lawcentre on 19 October 2021.  The complainant claims she was refused legal aid and legal representation in an appeal she had brought against a determination of the Rental Tenancies Board (RTB). 

The complainant asserts that in refusing legal aid and representation the respondent discriminated against her on the grounds of race, civil status, family status and being a recipient of Housing Assistance Payment (HAP).

Legislation

The Equal Status Act provides the following in respect of the burden of proof:

Section 38A.

(1) Where in any proceedings facts are established by or on behalf of a person from which it may be presumed that prohibited conduct has occurred in relation to him or her, it is for the respondent to prove the contrary.

The wording of the above section is similar to that of section 85A of the Employment Equality Act in respect of the burden of proof in complaints of discrimination.  The Labour Court established the test for applying the requirements of Council Directive 97/80/EC on the burden of proof in cases of discrimination in Southern Health Board v Mitchell [2001]12 E.L.R. 201.  The Court in HSE North Eastern Area v T.P. Sheridan & ors EDA 0820 stated that the test formulated in Mitchell has three stages:

1.       The complainant must prove the primary facts upon which they rely in alleging discrimination.

2.       The Court must evaluate those facts, if proved, and satisfy itself that they are of sufficient significance in the context of the case as a whole to raise a presumption of discrimination.

3.       If the complainant fails at stage 1 or 2 he or she cannot succeed.  If the complainant succeeds at stages 1 and 2 the presumption of discrimination comes into play and the onus shifts to the respondent to prove, on the balance of probabilities, that there is no discrimination.

I must first decide if the complainant has established facts upon which she relies in alleging discrimination on the grounds of race, civil status, family status and being a recipient of HAP.

The complainant in her evidence stated that she is of West Slav ethnic origin and a Czech national.  Her first language is Czech, and she does not speak Irish.  The complainant alleged that she was not offered a translator and did not have access to documents in Czech or Irish.  The complainant confirmed that she did not request any of the documents in Irish or any other language.  The complainant alleged that if the application was made by an Irish person a legal aid certificate would have been granted.

The complainant stated that she was on a HAP payment and because she was on a lower income she was discriminated against.  The respondent discriminated against her as a person on a HAP payment because it did not want to spend money on her case.  She alleged she was denied a legal aid certificate because she was receiving HAP.

The complainant stated that she is a single person and she alleged that if she had been an Irish person with a family she would have been considered for legal aid. 

The complainant stated that she became very stressed by the refusal of legal aid.  She alleged that the respondent discriminated against her after she submitted this complaint to the WRC.  She had another case in which she needed legal advice and the Jervis Centre would not deal with that case.

In response to questions put in cross examination the complainant stated that the respondent knew of her civil and family status because of details submitted with her application.  The complainant stated that she did not have proof that she would have received legal aid if she had children, but she saw other cases where people with children got legal aid, she referred to a case of a Romanian family that received legal aid.

The complainant stated that the respondent knew she was receiving HAP since October 2021.  The complainant could not point to anything said or written that demonstrated discrimination connected to being a HAP recipient.  The complainant confirmed that Ms Gallagher did arrange a consultation and obtained a legal opinion, but she alleged that she was refused legal services.  She stated that she was seen as a low-income person and was treated differently to Irish citizens who were not in receipt of HAP.

The complainant confirmed that she had received a letter of engagement dated 28 October 2021.  The complainant stated that she did not understand what “merits” was and it was difficult to ask as she was interrupted and told she had to answer questions rather than ask questions.  The complainant stated that she was not provided with sufficient information and the barrister did not talk about successful cases against the RTB.  The complainant did not accept that her case was not strong as she claimed there were other cases that were not referred to by the barrister.  The complainant stated that in the High Court on 18 July 2022 her application to extend time was refused.

Ms Gallagher gave evidence on behalf of the respondent.  She stated she is a solicitor with the respondent.  She was allocated the complainant’s case in February 2022.  The case was an appeal of a decision of the RTB.  Ms Gallagher explained the process in dealing with this case.  First, the legal advice stage is based on assessing the documents and information provided.  The complainant had provided documents.  To provide legal representation a case is assessed on its merits and then a recommendation would be made to the Legal Aid Board.  To assist her in making a recommendation to the Board she had reviewed the documents and arranged a consultation with a barrister, Ms Lane.  Following the consultation Ms Lane provided a written opinion on the case and the likelihood of success.  The opinion was that the complainant would not succeed and that there could be cost implications for the complainant.

Having reviewed the opinion on the merits Ms Gallagher concluded that the complainant did not have a reasonable chance of success in her High Court application.  Therefore, she was not in a position to recommend that the Board issue a legal aid certificate for legal representation.

Ms Gallagher stated that she sent a copy of the opinion to the complainant and asked her to read it carefully.  She followed up with another email and phone call to confirm the complainant understood the position.  The cover letter had included information about what steps a landlord might take in the District Court in relation to the RTB decision.  Although she could not recommend that a legal aid certificate be granted it was still open to the complainant to instruct her to apply to the Board for a certificate.  Ms Gallagher stated that the complainant did not instruct her to apply for a legal aid certificate.

Ms Gallagher confirmed that if a legal aid certificate is refused there is an appeal process.

Ms Gallagher stated that having sent the legal opinion on 18 May2022 and a further email letter on 23 May 2022 she telephoned the complainant.  The complainant was due in court on 23 May 2022 and Ms Gallagher wanted to be sure that she read the opinion before her court appearance.  The complainant ended the call.  Ms Gallagher called again but the complainant ended the call a second time.

Concerning the allegations of discrimination Ms Gallagher stated that race did not play any part in her decision about the complainant’s case.  Ms Gallagher stated that the Law Centre deals with clients of varied backgrounds, but all are of limited means, so clients are not discriminated against because they have a low income or because of their background.  Ms Gallagher stated that the civil or family status of a client is never a factor in the treatment of clients.  The majority of clients are recipients of some benefits from the State including HAP.  Ms Gallagher stated that the complainant was not discriminated against on any of the grounds alleged or at all.  Ms Gallagher confirmed that if a client did not have limited means they would not be eligible for legal aid.

Ms Gallagher denied that the complainant was treated unprofessionally by herself or by Ms Lane.  Ms Gallagher stated that the complainant was asked if she needed an interpreter, and she did not require one. 

In reply to questions from the complainant Ms Gallagher stated she did not agree the complainant was treated differently.  Ms Gallagher confirmed that she knew the complainant was not a lawyer, all her clients are not lawyers.  Ms Gallagher stated that she did not refuse a legal aid certificate to the complainant.  She stated that the complainant had not instructed her to make an application for a legal aid certificate after the legal opinion was provided to the complainant.

Ms Gallagher stated that there had been a discussion about language at both consultations and the complainant did not require an interpreter.

In reply to questions about civil and family status and legal aid provided to a Romanian family Ms Gallagher stated that each case is assessed on the merits of the case.  Ms Gallagher replied that the complainant was not discriminated against because of her civil or family status or because she was receiving HAP.  Ms Gallagher did not accept that the complainant was treated differently because she was not Irish.  Ms Gallagher stated that the complainant had been sent three letters of advice.  Ms Lane had provided an opinion and advice on what could happen in the District Court.

Ms Gallagher stated that the complainant had not been refused advice on another case.  When the complainant referred this complaint to the WRC it was no longer appropriate to give advice on another case as there could be a conflict of interest.  The complainant had been referred to another Law Centre to obtain advice on her other case.  Ms Gallagher stated that the complainant had not been discriminated against because she was referred to another Law Centre for advice.

Civil Legal Aid Act, 1995

The aim and purpose of the Civil Legal Aid Act is to “make provision for the grant by the State of legal aid and advice to persons of insufficient means in civil cases”.  The Act sets out the grounds on which legal advice and representation may be provided.  Section 28 provides:

28.— (1) A person shall not be granted legal aid unless the person is granted a legal aid certificate under this section in respect of the legal aid sought.

The complainant, like all clients of the Legal Aid Board, is subject to the conditions set out above.  The complainant met the first test, that of financial eligibility because she is of limited means being a recipient of jobseekers’ allowance and HAP.  Based on that qualification the complainant was provided with access to a solicitor, Ms Gallagher, and legal advice.

 The complainant was provided with a consultation with Ms Gallagher and a barrister, Ms Lane, on 26 April 2022 concerning RTB case.  Following that consultation Ms Lane provided Counsel’s Opinion on 18 May 2022.  In summary, the view of Counsel was that the complainant’s application to the High Court seeking an extension of time to appeal the decision of the RTB would fail.  In those circumstances and considering the statutory obligations set out in section 28 of the Act, Ms Gallagher would not recommend the granting of a legal aid certificate.  Having carefully considered the evidence and submissions presented I am satisfied that the respondent acted in compliance with its obligations under the Civil Legal Aid Act.

Finding

The complainant has not established facts to support her allegation of discrimination on the ground of being a recipient of HAP.  She was provided with legal advice because she was of limited means.

The complainant has not established facts to support her allegation of discrimination on the ground of race.  She did not provide evidence or point to any statement, written or oral, where her race was raised.  The complainant stated she assumed she was treated differently to how an Irish citizen would be treated.

The complainant has not established facts to support her allegation of discrimination on the grounds of civil or family status.  The complainant did not provide any evidence or point to any statement, written or oral, where her civil or family status was raised.  The complainant referred to a case she had read where a Romanian family with five children had received legal aid.

Section 28 of the Civil Legal Aid Act requires the Legal Aid Board to consider each case on the individual merits of that case, which includes inter alia, financial eligibility, likelihood of success and probable costs.

The Labour Court in Valpeters v Melbury Developments Ltd EDA 0917, [2010] E.L.R. 64 considered the burden of proof required under section 85A of the Employment Equality Act, which has similar requirements to section 38A of the Equal Status Act.  The Court stated:

“This requires that the Complainant must first establish facts from which discrimination may be inferred. What those facts are will vary from case to case and there is no closed category of facts which can be relied upon. All that is required is that they be of sufficient significance to raise a presumption of discrimination. However, they must be established as facts on credible evidence. Mere speculation or assertions, unsupported by evidence, cannot be elevated to a factual basis upon which an inference of discrimination can be drawn.”

The complainant in this case was dissatisfied with the legal opinion provided to her by the respondent.  Counsel was of the view that the complainant’s application for an extension of time to appeal the RTB decision would fail.  That view was based on the statutory provisions dealing with such time limits and recent case law.  By letter dated 23 May 2022 Ms Gallagher informed the complainant that “While Counsel does not recommend that legal aid be granted, you are entitled to make an application for legal aid and legal services will determine whether legal aid should be granted in your case.  I am afraid, based on Counsel’s Opinion I am not in a position to recommend that legal aid be granted.”   The complainant did not instruct Ms Gallagher to make an application for legal aid.  The complainant’s application for an extension of time was subsequently refused in the High Court.

When the complainant received that letter, she assumed she was treated differently to other clients of the Legal Aid Board.  Assumptions or speculation about other cases are not facts upon which an inference of discrimination can be drawn.  I am satisfied that the complainant has not established facts from which it may be presumed that prohibited conduct has occurred in relation to her.  The complainant has not established facts from which it may be presumed that she had been discriminated against on the grounds of race, civil status, family status or being a recipient of HAP.  In such circumstances the burden of proof does not pass to the respondent to prove the contrary.

CA-00051251-001

The complainant ticked the box on the complaint form that states “An employment agreement containing a provision which is discriminatory.  (Employment Equality Acts 1998 – 2011.”  This was clearly an error as the complainant struck out Employment Equality Act and wrote Equal Status Act.  The complainant did not present any case concerning employment at the hearing.  I decide that this complaint is not well founded.

CA-00051251-002

Complaint submitted under the Equal Status Act, 2001.

The complainant alleged she was discriminated against on the grounds of race, civil status, family status and being a recipient of HAP.

The complainant has not established facts to support her allegation of discrimination on the ground of being a recipient of HAP.  She was provided with legal advice because she was of limited means.

The complainant has not established facts to support her allegation of discrimination on the ground of race.  She did not provide evidence or point to any statement, written or oral, where her race was raised.  The complainant stated she assumed she was treated differently to how an Irish citizen would be treated.

The complainant has not established facts to support her allegation of discrimination on the grounds of civil or family status.  The complainant did not provide evidence or point to any statement, written or oral, where her civil or family status was raised.  The complainant referred to a case she had read where a Romanian family with five children had received legal aid.

Having carefully considered the evidence and submissions I decide that the complainant has not established facts from which it may be presumed that prohibited conduct has occurred in relation to her on the grounds of race, civil status, family status or being a recipient of HAP.  I am satisfied that the respondent did not engage in conduct prohibited under the Equal Status Act.  I decide that this complaint is not well founded.

Discrimination

Race

Civil Status

Family Status

HAP recipient