S.I. No. 273/1996 - Civil Legal Aid Regulations, 1996.
S.I. No. 273 of 1996. | ||
CIVIL LEGAL AID REGULATIONS, 1996. | ||
ARRANGEMENT OF REGULATIONS | ||
Part 1 - General | ||
Part 2 - Legal Advice | ||
Part 3 - Legal Aid | ||
9. Amendment, termination and revocation of legal aid certificates | ||
Part 4 - Legal Aid and Advice-Appeals Procedures | ||
Part 5 - Financial eligibility for Legal Aid and Advice | ||
13. Financial eligibility and contributions towards cost of legal aid and advice | ||
21. Contributions by persons in receipt of legal aid or advice | ||
Part 6 - Law Centres | ||
S.I. No. 273 of 1996. | ||
Civil Legal Aid Regulations, 1996. | ||
I, MERVYN TAYLOR, Minister for Equality and Law Reform, in exercise of the powers conferred on me by section 37 of the Civil Legal Aid Act, 1995 (No. 32 of 1995), hereby make the following Regulations: | ||
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Part 1 GENERAL | ||
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1 Citation | 1. These Regulations may be cited as the Civil Legal Aid Regulations, 1996. | |
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2 Commencement | 2. These Regulations shall come into operation on the 11th day of October, 1996. | |
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3 Definitions | 3. In these Regulations, unless the context otherwise requires — | |
"the Act of 1995" means the Civil Legal Aid Act, 1995 | ||
"applicant" means a person applying for legal aid or advice or both; | ||
"application" means an application for legal aid or advice or both; | ||
"the Board" means the Legal Aid Board established by section 3 of the Act of 1995; | ||
"certificate" means a civil legal aid certificate issued by the Board under section 28 of the Act of 1995 and these Regulations authorising the grant of legal aid to the person to whom the certificate relates; | ||
"Chief Executive" means the chief executive officer of the Board appointed under section 10 of the Act of 1995; | ||
"contribution" means the financial contribution payable by an applicant towards the cost of providing legal aid or advice, in accordance with section 29 of the Act of 1995 and these Regulations; | ||
"the Fund" means the Legal Aid Fund provided for in section 19 of the Act of 1995; | ||
"family home" has the meaning assigned to it by section 2 of the Family Home Protection Act, 1976 as amended by the Family Law Act, 1995 ; | ||
"law centre" has the meaning assigned to it by section 30 of the Act of 1995: | ||
"legal advice" has the meaning assigned to it by section 25 of the Act of 1995; | ||
"legal aid" has the meaning assigned to it by section 27 of the Act of 1995; | ||
"the Minister" means the Minister for Equality and Law Reform; | ||
"officer of the Board" means a person (other than a solicitor's apprentice or a solicitor of the Board in respect of whom an order under section 11(5)(a) of the Act of 1995 is not in force) employed by the Board; | ||
"solicitor of the Board" means a solicitor employed by the Board; | ||
"staff of the Board" means officers of the Board and solicitors of the Board. | ||
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Part 2 LEGAL ADVICE | ||
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4 Application for legal advice | 4. (1) Any person who wishes to be granted legal advice shall apply in writing to a law centre on a form approved by the Board or in such other manner, being in writing, as the Board may accept as sufficient in the circumstances of the case. The date of the application shall be the date on which the applicant applies for legal advice. | |
(2) Subject to paragraph (1) of Regulation 10, every application to a law centre for legal advice shall be accompanied by such information (including information as to the applicant's means) as the Board deems necessary to enable a decision to be made whether legal advice should be granted. | ||
(3) If the Board so determines, the decision on an application for legal advice may be made by a member of the staff of the Board where he or she is of the opinion that the conditions in sections 24, 26 and 29 of the Act of 1995 and these Regulations have been satisfied. | ||
(4) Where the Board or a member of the staff determines that the applicant is not entitled to legal advice the applicant shall be informed in writing about the grounds for refusal of the application by reference to sections 24, 26 and 29 of the Act of 1995 and these Regulations. | ||
(5) The Board may require a person to whom it is granting legal advice to comply with such requirements as it reasonably considers expedient to enable it to satisfy itself that it is reasonable for the person to continue to receive legal advice. | ||
(6) Subject to the provisions of paragraph (7), the Board or the Chief Executive, if the Board so determines, may at any time withdraw legal advice when satisfied that this is justified; in particular — | ||
(a) where the person in receipt of legal advice has failed to comply with any condition imposed in connection with the granting of legal advice and, especially, where he or she has been required to make a contribution and any payment in respect thereof is more than twenty-one days in arrears, | ||
(b) where the Board or the Chief Executive considers that the person in receipt of legal advice is no longer eligible for legal advice on financial grounds, | ||
(c) where the Board or the Chief Executive considers that the person in receipt of legal advice is behaving unreasonably in connection with the matter in relation to which he or she is receiving advice or that it is unreasonable in the particular circumstances of the case (including the cost of continuing to provide legal advice) that the person should continue to receive legal advice, or | ||
(d) if the provisions of paragraph (5) of Regulation 13 are applicable. | ||
(7) The person receiving legal advice shall be notified in writing of the Board's or the Chief Executive's intention to withdraw legal advice and he or she may, within a period of 1 month from the date of such notification, show cause in writing to the Board or the Chief Executive why such withdrawal should not be proceeded with, and the Board or the Chief Executive may decide not to proceed with the withdrawal of legal advice if satisfied that they would be justified in so doing. | ||
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Part 3 LEGAL AID | ||
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5 Application for legal aid certificate | 5. (1) A person shall not be granted legal aid unless the person is granted a legal aid certificate in respect of the legal aid sought. | |
(2) A legal aid certificate shall be granted to a person by the Board subject to sections 24, 28 and 29 of the Act of 1995, and these Regulations. | ||
(3) Any person who wishes to be granted legal aid shall apply to the Board for a legal aid certificate. | ||
(4) Subject to paragraph (1) of Regulation 10, every application shall be made in writing on a form approved by the Board or in such other manner, being in writing, as the Board may accept as sufficient in the circumstances of the case. The date of the application shall be the date on which the applicant applies for legal aid. | ||
(5) Every application to the Board shall be accompanied by — | ||
(a) such information (including information as to the applicant's means) as the Board deems necessary to enable it to decide whether a certificate should be granted, and | ||
(b) an opinion signed by a solicitor of the Board as to whether a certificate should be granted, and | ||
(c) a statement signed by the solicitor of the Board that he or she has, during the consultation, advised the applicant on matters in respect of which he or she is required to give advice under the Act of 1995 and these Regulations. | ||
(6) The following provisions shall apply where a certificate is sought by a minor or other person who is unable to make an application on his or her own behalf — | ||
(a) subject to the provisions in the following paragraphs the application shall be made by a person of full age and capacity and, where the application relates to proceedings which are required by rules of court to be brought or defended by a next friend or guardian ad litem, that person will be the next friend or guardian ad litem; | ||
(b) the Board shall not issue a certificate applied for by a person on behalf of another person unless the person making the application has signed an undertaking to pay to the Board (if called upon to do so) any sum which, by virtue of any provision of these Regulations, the Board may require a legally aided person of full age and capacity to pay upon the issue or during the currency or upon the termination or revocation of the certificate; | ||
(c) any certificate issued under the Act of 1995 and these Regulations shall be in the name of the person to whom it relates, stating the name of the person who has applied on his or her behalf; | ||
(d) in any matter relating to the issue, amendment, revocation or termination of a certificate and in any other matter which may arise as between a legally aided person and the Board, the person who has applied on behalf of another person for the certificate shall be treated for all purposes as the agent of that other person. | ||
(e) the Board may, where it considers it appropriate, waive all or any of the requirements of subparagraphs (a) to (d). | ||
(7) Subject to paragraph (8)(b) the decision on an application to grant legal aid may be made by a solicitor of the Board duly authorised in such classes of cases as may be specified by the Board. | ||
(8) (a) Where the Board so decides and the proceedings the subject of the application for legal aid arise out of or are connected with proceedings in the District Court (as may be specified by the Board under paragraph (7)), the Circuit Court, the High Court or the Supreme Court, the decision on the application may be made by a certifying committee established under Regulation 6 and in accordance with procedures in this Part of these Regulations. | ||
(b) The functions of the certifying committee under subparagraph (a) and under Regulation 9 may be assigned by the Board to the Chief Executive, an officer of the Board or a solicitor of the Board. | ||
(9) Where the decision is that the applicant is not entitled to legal aid the Board shall cause the applicant to be informed in writing of the grounds for refusal of the application by reference to sections 24, 28 and 29 of the Act of 1995 and these Regulations. | ||
(10) Where a decision to grant legal aid is made, a legal aid certificate shall be offered to the applicant in writing. The notification to the applicant shall state the conditions on which the certificate shall be granted and the contribution payable by the applicant. Paragraphs (1) and (2) of Regulation 8 shall apply accordingly. | ||
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6 Consideration of applications by the Board | 6. For the purpose of the exercise of functions referred to in paragraph (8)(a) of Regulation 5 the Board may appoint committees of its members, to be known as certifying committees, each consisting of three members of whom at least one will be a member who had, prior to his or her appointment as a member of the Board, been a practising barrister or solicitor. A majority decision by a certifying committee will be deemed to be the decision of that committee. Certifying committees shall keep such records of their meetings and such other records as the Board may deem necessary. | |
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7 Grant and refusal of legal aid certificates | 7. (1) On reference to it, the Board or the certifying committee shall decide whether, having regard to the provisions of the Act of 1995 and these Regulations, a certificate should be granted. | |
(2) If the Board or the certifying committee considers that a certificate should be granted it may, where it considers necessary, determine the conditions on which the certificate should be granted and the actual contribution to be paid by the applicant. | ||
(3) If the Board or the certifying committee considers that a certificate should be refused, it shall convey its decision in writing to the applicant, through a member of the staff of the Board and shall, at the same time, state the reasons for refusal. | ||
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8 Issue of legal aid certificate | 8. (1) If the Board or a certifying committee decides to grant legal aid a certificate shall be issued to the applicant through his or her solicitor. The certificate shall state the conditions on which legal aid is being granted and the contribution payable by the applicant. | |
(2) The applicant shall, within a month of receipt of the legal aid certificate, signify his or her acceptance or rejection of it in such manner, being in writing, as the Board may accept as sufficient in the circumstances of the case. If the offer is accepted, the applicant shall also signify in writing that he or she accepts legal aid subject to the provisions of the Act of 1995 and these Regulations, and, in particular, subject to the undertaking that he or she will abide by the conditions specified in the certificate including such variation in those conditions as may be prescribed by the Board and shall pay to the Board any contribution or other payment (including costs or damages recovered) for which he or she may become liable in connection with the grant of the certificate. If the certificate is neither accepted nor rejected within a month of it being issued, it shall be deemed to have been rejected unless the Board is satisfied that there is good and sufficient reason for dealing with the application after that time. | ||
(3) The certificate shall specify — | ||
(a) the steps which the applicant is authorised to take, | ||
(b) whether and to what extent the services of counsel may be engaged, | ||
(c) whether, and to what extent, the fees or expenses of any expert or any witness may be paid, or | ||
(d) such other matters as are deemed appropriate by the Board. | ||
(3) Subject to the provisions of paragraph (4) the expense of taking any action which is outside the scope of the certificate shall not be borne by the Board. | ||
(4) In a case which is regarded by the Board as an emergency case, the Board may authorise the taking of action which is outside the scope of the certificate provided it is satisfied that such action is essential and that the certificate would, but for the emergency, be amended to allow such action to be taken. | ||
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9 Amendment, termination and revocation of legal aid certificates | 9. (1) The Board or a certifying committee may amend a certificate, including a certificate issued by a solicitor of the Board under paragraph (7) of Regulation 5, if it appears to be necessary in the particular circumstances of the case to do so. The applicant shall be notified through his or her solicitor of any amendments so made. | |
(2) The Board or a certifying committee may, subject to the Act of 1995 and these Regulations, either revoke or terminate a certificate including a certificate by a solicitor of the Board issued under paragraph (7) of Regulation 5. A person whose certificate is revoked shall be liable for all costs incurred by the Board in connection with the proceedings to which the certificate relates and a person whose certificate is terminated shall, from the date of the cesser, cease to be a legally aided person in the proceedings. | ||
(3) Subject to the provisions of paragraph (5), the Board or a certifying committee may at any time terminate a certificate from such date as it considers appropriate when satisfied that this is justified and in particular may do so — | ||
(a) at the request of the legally aided person, or | ||
(b) where a legally aided person has failed to comply with any condition imposed in connection with the grant of a certificate and, especially, where he or she has been required to make a contribution and any payment in respect thereof is more than twenty-one days in arrears, | ||
or | ||
(c) on being satisfied by the report of the legally aided person's solicitor that the certificate should be terminated, or | ||
(d) where it considers that the legally aided person is no longer eligible for legal aid on financial grounds, or | ||
(e) where it considers that the legally aided person is behaving unreasonably in connection with the conduct of the proceedings or that it is unreasonable in the particular circumstances of the case (including the cost of the proceedings) that that person should continue to receive legal aid, or | ||
(f) if the provisions of paragraph (1) of Regulation 11 or paragraph (5) of Regulation 13 are applicable. | ||
(4) Subject to the provisions of paragraph (5), the Board or a certifying committee may revoke a certificate if it considers that the legally aided person, in relation to his or her application for the certificate, has made an untrue statement as to his or her resources or otherwise or has failed to disclose any material fact whether the statement was made or the failure occurred before or after the issue of any certificate but if the legally aided person satisfies the Board or the committee that he or she used due care and diligence to avoid the mis-statement or failure, the Board or the committee may terminate rather than revoke the certificate. | ||
(5) The legally aided person shall be notified directly or through his or her solicitor of the Board's or the certifying committee's intention to either terminate or revoke the certificate and it shall be open to him or her to show cause in writing, within a period of one month, why such termination or revocation should not be proceeded with. | ||
(6) Where a certificate has been terminated, the person to whom the certificate was issued shall remain liable for the payment of any outstanding contribution which has been calculated in accordance with the provisions of these Regulations to the extent necessary to meet the costs incurred by the Board in connection with the issue of the certificate. However, the Board may waive payment of all or any proportion of such outstanding contribution if it considers that payment would impose severe financial hardship on the legally aided person. | ||
(7) Where the Chief Executive, an officer of the Board or a solicitor of the Board has been assigned functions of the certifying committee in accordance with subparagraph (b) of paragraph (8) of Regulation 5 he or she may exercise the functions of the committee under this Regulation. | ||
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10 Emergency certificates | 10. (1) The Board may issue an emergency certificate to an applicant without going through the procedure laid down in Part 3, provided that — | |
(a) it is satisfied that it is essential in the interests of preserving the applicant's rights to issue the certificate and that it would cause severe hardship to him or her if the ordinary procedure for the granting of a certificate were followed, and | ||
(b) the applicant has provided a statement of his or her means from which it appears that he or she is eligible for legal aid, and | ||
(c) the applicant signs an agreement to abide by the conditions on which the certificate is issued and to pay any contribution assessed on the basis of his or her statement of means and any other payment for which he or she may become liable in connection with the grant of the certificate, including any additional contribution for which he or she may become liable (or, in case it subsequently transpires that he or she was not eligible for legal aid on financial grounds, the total cost to the Board of providing him or her with legal aid) on the basis of a more detailed assessment of his or her means by the Board, following the issue of the emergency certificate. | ||
(2) The powers of the Board to amend, revoke or terminate a certificate at any time, and with effect from whatever date it considers appropriate, shall apply also to an emergency certificate. | ||
(3) Where the Board so decides, emergency certificates may be issued by certifying committees and the Board may, in respect of applications generally for emergency certificates or in respect of applications of a particular kind, authorise the Chief Executive, an officer of the Board, or a solicitor of the Board to issue them. | ||
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11 Legal aid certificates - miscellaneous provision | 11. (1) An applicant shall provide such information as is required to enable any person, certifying committee, appeal committee or the Board to discharge his or her or its functions under the Act of 1995 and these Regulations and the refusal or failure to provide such information without a reason which, in the opinion of such person, certifying committee, appeal committee or the Board, is satisfactory shall result in the refusal of the certificate, or, where a certificate has already been issued, the termination or revocation of that certificate. | |
(2) A certificate which is granted after the commencement of the proceedings in respect of which it is sought shall not be extended to cover any action taken or costs incurred prior to the issue of the certificate. | ||
(3) An applicant who is refused a certificate or whose certificate is amended, terminated or revoked and who subsequently decides to take, defend or continue proceedings or to take particular steps in connection with those proceedings outside the scope of the Act of 1995 shall not, irrespective of the result of the action taken, be deemed by virtue of that result, to have established a right to have any decision of the Board in relation to his or her application reversed or otherwise altered. | ||
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Part 4 LEGAL AID AND ADVICE - APPEALS PROCEDURES | ||
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12 Review of decisions and appeals | 12. (1) An applicant who is aggrieved by any decision of the Board or a certifying committee, the Chief Executive, an officer of the Board or, a solicitor of the Board may submit such further information in writing to the Board as he or she deems appropriate with a view to having the decision reviewed. The review of the decision in the light of the information provided, shall, so far as possible, be made by a certifying committee, the Chief Executive or the officer or solicitor of the Board, as the case may be, who made the original decision. | |
(2) If a review is requested under the provisions of paragraph (1), the applicant's solicitor shall convey to the Board an opinion as to whether the decision should stand. | ||
(3) If, following a decision or a review of any decision under the provisions of paragraph (1), other than a decision of the Board, the applicant continues to be aggrieved, he or she may appeal to a committee of Board members which shall be known as the appeal committee. The appeal committee shall consist of members of the Board, not being members of the certifying committee which made the original decision, comprising a chairperson and four other members of whom two shall be members who, prior to their appointment as Board members, were either practising barristers or practising solicitors and the quorum for a meeting of the appeal committee shall be four. | ||
(4) The submission of further information under paragraph (1) or the lodgement of an appeal under paragraph (3) shall be made within a period of one month from the date on which he or she has been informed, in accordance with Regulations 4(4) and 5(9), that he or she is not entitled to legal aid or advice. | ||
(5) The appeal committee may affirm, reverse or otherwise alter any decision which is the subject of an appeal and, if the appeal committee considers it desirable to review not only the particular decision which is the subject of the appeal but the application generally, it may do so and may, following that review, make a decision either affirming, reversing or otherwise altering any decision made in connection with the application. | ||
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Part 5 FINANCIAL ELIGIBILITY FOR LEGAL AID AND ADVICE | ||
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13 Financial eligibility and contributions towards cost of legal aid advice | 13. (1) Subject to sections 24, 26, 28 and 29 of the Act of 1995 a person shall not qualify for legal aid or advice unless he or she — | |
(a) satisfies the requirements in respect of financial eligibility specified in this Part, and | ||
(b) pays to the Board a contribution towards the cost of providing the legal aid or advice determined in accordance with these Regulations. | ||
(2) An applicant's financial eligibility shall be assessed by reference to the applicant's disposable income and, where appropriate, disposable capital and the contribution payable by the applicant pursuant to these Regulations shall be assessed by reference to the applicant's disposable income and, where appropriate, disposable capital, as prescribed in these Regulations. | ||
(3) An applicant whose disposable income exceeds £7,350 per annum shall not be eligible to obtain legal aid or advice. | ||
(4) An applicant whose disposable capital exceeds £200,000 shall not be eligible to obtain legal aid or advice. | ||
(5) If, in the opinion of the Board, the behaviour of the person applying for or in receipt of legal aid or advice is such that the costs of providing the legal aid or advice concerned are likely to be increased unnecessarily, the Board may, after notifying the person of its intention so to do - | ||
(a) in the case of a person applying for legal aid or advice, refuse to grant such legal aid or advice, or increase by an amount equivalent to the estimated additional cost to the Board the amount of the contribution which would otherwise be payable by the person under these Regulations, | ||
(b) in the case of a person in receipt of legal aid, revoke or terminate the legal aid certificate or increase the amount of the contribution payable by the person under these Regulations, and | ||
(c) in the case of a person in receipt of legal advice, cease to grant such legal advice or increase the amount of the contribution which would otherwise be payable by the person under these Regulations. | ||
(6) If, in the opinion of the Board, an applicant, with intent to reduce his or her disposable income or disposable capital, has directly or indirectly deprived himself or herself of any resource for the purpose of qualifying for legal aid or advice under the Act of 1995, the resources of which he or she has so deprived himself or herself will be treated as part of his or her resources. | ||
(7) The Board may assign to staff of the Board the functions of the Board referred to in this Regulation. | ||
(8) In this Regulation — | ||
"capital", in relation to an applicant, means the value of every resource of a capital nature and includes the matters specified in Regulation 18; | ||
"disposable capital", in relation to an applicant, means the amount of his or her capital after making such deductions and allowances as are specified in Regulation 19; | ||
"disposable income", in relation to an applicant, means his or her income after making such deductions and allowances as are specified in Regulation 16; and | ||
"income", in relation to an applicant, means the income which he or she may reasonably expect to receive from all sources during the year succeeding the date of application but shall, in the absence of what the Board considers to be a satisfactory means for ascertaining it, be taken to be the income actually received during the year immediately preceding the date of application and shall include the matters specified in Regulation 15 or such income as is ascertained by the Board to be the income in accordance with Regulation 14. | ||
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14 Assessment of income and capital | 14. (1) The assessment as to whether an applicant is an eligible person shall, subject to these Regulations, be a matter for the Board. | |
(2) The Board may, in respect of any application, seek a report on the applicant's income and capital resources from any person or body who is, in the opinion of the Board, likely to be in a position to provide assistance including | ||
(a) the Department of Social Welfare, | ||
(b) where the question of the assessment of the capital value of land or premises arises, the Commissioner of Valuation or, in the case of other capital resources, a body competent to make the particular assessment, and | ||
(c) the Revenue Commissioners. | ||
(3) In computing the income and capital resources of an applicant the monetary value to the applicant of the family home in which the applicant ordinarily resides with his or her spouse shall, where it is the subject matter of the dispute, be excluded. | ||
(4) In computing the income and capital resources of an applicant, | ||
(a) where the applicant is married, the resources of his or her spouse shall be treated as his or her resources; | ||
(b) where the applicant is living with a partner as man and wife, the resources of his or her partner shall be treated as his or her resources, | ||
except where - | ||
(i) the applicant and his or her spouse are living separate and apart, | ||
(ii) the spouse or partner has a contrary interest in the matter in respect of which the application is made, or | ||
(iii) it would in the opinion of the Board be unreasonable in all the circumstances of the case to take such resources into account. | ||
(5) Where an application is made by or on behalf of an applicant who is under the age of eighteen years or by an applicant above that age who is pursuing a full-time course of education, the resources of any person liable to maintain that applicant and any person having care and control of the applicant (not being a person having such care and control by reason of any contract or for some temporary purpose) shall be taken into account except where - | ||
(a) the person liable to maintain the applicant or any person having care and control of the applicant, as the case may be, has a contrary interest in the matter in respect of which the application is made, or | ||
(b) it would in the opinion of the Board be unreasonable in all the circumstances of the case to take such resources into account. | ||
(6) The Board may assign to staff of the Board the functions of the Board referred to in this Regulation. | ||
(7) The Board may reassess the income and capital resources of the applicant at any time while he or she is in receipt of legal aid or advice or within a reasonable time thereafter. Following such reassessment, if the applicant's resources have increased he or she may be required to pay a higher contribution subject to the condition that the total payment required by the Board shall not exceed the cost to the Board in the particular case. | ||
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15 Income | 15. (1)Subject to paragraph (8) of Regulation 13 and paragraph (12) of Regulation 16, 'income' shall include - | |
( a ) gross income in the form of salary, wages, pension or other annuity (subject to the provisions of paragraph (2)); | ||
( b ) income from a trade, business or gainful occupation other than employment at a wage or salary, including dividends and interest arising from stocks, shares, deposits and other investments (subject to the provisions of paragraph (3)); | ||
( c ) rents from property (subject to the provisions of paragraph (4)): | ||
( d ) benefits, allowances or pensions payable under the Social Welfare Acts, the Health Acts or the Redundancy Payments Acts; | ||
( e ) the value of other benefits or privileges including the value of free or partly free board (subject to the provisions of paragraphs (5) to (9)). | ||
(2) "Income" for the purpose of paragraph (1)(a) shall, if, based on the salary, wages, pension or other annuity paid in the twelve months prior to the date of application (under the provisions of paragraph (8) of Regulation 13) be increased by any pay or other increase which in the opinion of the Board shall be granted to the applicant under the terms of any agreement made in the twelve months following the date of application. | ||
(3) "Income" for the purpose of paragraph (1)(b) shall, in the absence of what the Board considers to be a satisfactory method of assessing it, be calculated having regard to the profits for the last accounting period in respect of which accounts have been prepared. No deductions apart from those specified in paragraph (1) of Regulation 16 shall be made in respect of the living or other expenses of the applicant or any member of his or her family or household except in so far as such member of his or her family or household is wholly or mainly employed in the trade or business and the living expenses in question form part of his or her remuneration. | ||
(4) "Rents" for the purpose of paragraph (1)(c) shall include any rents earned by sub-letting any premises or portion of a premises of which the applicant is the lessee and will also include any sums earned by the applicant by virtue of any mortgage or charge on any party. | ||
(5) "Other benefits or privileges" for the purpose of paragraph (1)(e) shall include any benefits other than salary or wages which are made available to and availed of by the applicant in connection with his or her employment and, subject, to the provisions of paragraphs (6) to (9), inclusive, the income value of these will be what a person to whom such benefits were not available, would, in the opinion of the Board, need to earn in order to secure them. | ||
(6) If the benefit falling to be assessed under the provisions of paragraph (1)(e) consists of a car provided by the applicant's employers, its value for the purpose of assessing income shall, subject to the provisions of paragraph (9), be deemed to be twenty-five per cent of the current retail price of a new car of the same type. The figure thus arrived at shall be increased by a further twenty per cent in respect of each of the following benefits | ||
( a ) car fuel for private travel provided free of charge, and | ||
( b ) car repairs provided free of charge, | ||
and shall be increased by a further ten per cent if car insurance is provided free of charge. | ||
(7) If the benefit falling to be assessed under the provisions of paragraph (1)(e) consists of accommodation, its value for the purpose of assessing income shall, subject to the provisions of paragraph (9) be deemed to be the annual rent which the applicant would, in the opinion of the Board (formed after consultation, if necessary, with the Commissioner of Valuation), be required to pay for similar accommodation but for the benefit. | ||
(8) If the benefit falling to be assessed under the provisions of paragraph (1)(e) consists of payment by the applicant's employer of premia on behalf of the applicant towards any insurance or pension scheme, its value for the purpose of assessing income shall, subject to the provisions of paragraph (9), be deemed to be the amount of the actual premia payable over the twelve-month period, or in the case of an employee who has the benefit of a non-contributory pension scheme, the amount which that benefit is reckoned by the Board, following consultation, if necessary, with the appropriate authorities, to be worth. | ||
(9) In the case of assessments made under the provisions of paragraphs (5) to (8), allowance shall be made in respect of any contributions paid by the applicant towards the benefits in question. | ||
(10) In the case of ex gratia payments made by a child of an applicant, the first £10 per week shall be disregarded for the purpose of assessing the parent's income under this Regulation. | ||
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16 Disposable income | 16. (1) Disposable income shall, subject to the provisions of paragraphs (1) and (m) of this paragraph consist of income as assessed in accordance with the provisions of these Regulations less the following allowances | |
(a) £1,328 per annum in respect of the applicant's spouse (subject to the provisions of paragraph (2)); | ||
(b) £668 per annum in respect of each of the applicant's dependants (subject to the provisions of paragraph (3)) ; | ||
(c) rent paid by the applicant (subject to the provisions of paragraph (4) and (7)); | ||
(d) rates actually paid by the applicant; | ||
(e) payments made by an applicant who is unmarried and who resides with his parents towards household expenses (subject to the provisions of paragraph (5)); | ||
(f) mortgage repayments (subject to the provisions of paragraph (6) and (7)); | ||
(g) expenses incurred in travelling to and from work (subject to the provisions of paragraph (8)); | ||
(h) hire purchase payments (subject to the provisions of paragraph (8)); | ||
(i) interest paid on loans other than those referred to at paragraphs (f) and (h) (subject to the provisions of paragraph (9)); | ||
(j) social insurance contributions; | ||
(k) payments made towards life insurance or towards membership of the Voluntary Health Insurance Scheme (subject to the provisions of paragraph (10)); | ||
( l ) income tax payments (subject to the provisions of paragraph (11)); | ||
( m ) 50% of payments made in respect of board and lodgings subject to a limit of £1,599 per annum per person. Contributions towards household expenses made by married persons who reside with their parents shall be regarded as payments in respect of board and lodgings; | ||
( n ) expenses incurred on child care facilities to enable an applicant to pursue employment shall be allowable in determining disposable income subject to a limit equal to the standard deduction for children under paragraph (1)(b). | ||
(2) The allowance specified at paragraph (1)(a) shall apply also where a spouse is living apart from the applicant provided that the applicant is providing maintenance for the spouse. | ||
(3) 'Dependants' for the purpose of paragraph (1) (b) shall include the applicant's children or step-children who are under eighteen years of age, children above that age who are pursuing a full-time course of education, dependent relatives or other persons permanently residing with the applicant, who are supported by the applicant and who do not have available to them independent means of support. | ||
(4) The allowance specified at paragraph (1)(c) shall, subject to paragraph (7), apply only to the applicant's normal place of residence and shall be subject to a limit of £2,976 per annum. Any amount added to the applicant's income under the provisions of paragraph (7) of Regulation 15 shall be deductible under the provisions of paragraph (1)(c) provided that this amount, when added to any amount which may be otherwise deductible under the provisions of paragraph (1)(c) does not exceed £2,976 per annum. | ||
(5) The allowance specified at paragraph (1)(e) shall be the actual amount paid by the applicant towards household expenses or £1,256 per annum whichever is the less. | ||
(6) The allowance specified at paragraph (1)(f) shall, subject to paragraph (7), apply only in the case of any mortgage repayments on the house in which the applicant usually resides and will be subject to a limit of £3,802 per annum. | ||
(7) Where the spouses are living in separate households, the allowance specified at paragraphs (1)(c) and (1)(f) shall apply also to the normal place of residence of the spouse of the applicant where the rent or mortgage in respect of that residence is paid by the applicant. | ||
(8) The allowance specified at paragraph (1) (g) and (h) shall be the actual amounts paid by the applicant subject to a limit of £265 per annum in each case. | ||
(9) The allowance specified at paragraph (1)(i) shall be the actual amount paid by way of interest by the applicant subject to a limit of £602 per annum. | ||
(10) The allowance specified at paragraph (1)(k) shall be the actual amount paid by the applicant subject to a limit of £754 per annum. | ||
(11) The allowance specified at paragraph (1)(l) shall be the sum which, in the opinion of the Board, would be payable as income tax in the current fiscal year by a person in the circumstances of the applicant whose gross income had been calculated in accordance with the provisions of these Regulations. | ||
(12) If the income of the applicant is aggregated with that of his or her spouse under paragraph (5) of Regulation 14, any payments made by that spouse from his or her income under the headings specified in paragraph (1) (c) to (l) shall, to the extent that they have not already been deducted from the combined income under the provisions of that paragraph, be deemed to be additional allowances for the purposes of that paragraph and shall be deducted from the combined income, subject to the condition that the total amount deducted in respect of any allowance which is subject to an upper limit shall not exceed that limit. | ||
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17 Maximum income contribution | 17. (1) If the applicant's disposable income is £5,060 per annum or less the maximum income contribution which he will be required to pay shall be - | |
(a) if he obtains legal advice only £4; | ||
(b) if he obtains legal aid £23. | ||
(2) Subject to paragraph 11 of Regulation 21 if the applicant's disposable income is over £5,060 per annum and not more than £7,350 per annum, the maximum income contribution which he or she will be required to pay shall be - | ||
(a) if he or she obtains legal advice only one-tenth of the difference between his or her disposable income and £5,060 but subject to a minimum contribution of £4 and a maximum of £64; | ||
(b) if he or she obtains legal aid £23 plus one quarter of the difference between his or her disposable income and £5,060. | ||
(3) All contributions shall be rounded to the nearest £l. | ||
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18 Capital | 18. (1) The applicant's capital shall be the value of every resource of a capital nature including | |
(a) money on hands or in trust or money lodged, deposited, or invested in a bank, post office, building society, friendly society, credit union or other institution; | ||
(b) any stocks, shares or securities (subject to the provisions of paragraph (2)); | ||
(c) interests in a company or business or property owning body of any kind (subject to the provisions of paragraph (3)): | ||
(d) house property (subject to the provisions of paragraphs (4) and (5)); | ||
(e) any interest in land (subject to the provisions of paragraph (5)): | ||
(f) life insurance or endowment policies (subject to the provisions of paragraph (6)); | ||
(g) valuables (subject to the provisions of paragraph (7)); | ||
(h) debts owed to the applicant (subject to the provisions of paragraph (8)); | ||
(i) the current value of equipment of a business or machinery or other equipment of a capital nature including a car which have not been taken into account under other paragraphs of this Regulation (subject to the provisions of paragraph (9)); | ||
(2) The value of any capital resources coming within the provisions of paragraph (1)(b) shall be based on their lowest market price on the date of the application for legal aid and/or advice. | ||
(3) If, in the opinion of the Board, the extent of the applicant's capital resources by virtue of his or her interest in a business would not be adequately assessed by the application of the provisions of paragraph (2) the Board may, as an alternative, treat the value of his or her interest for the purposes of assessing his or her capital resources to be – | ||
(a) such sum, or his or her share of such sum, as the case may be, as could be withdrawn from the assets of such business without substantially impairing the profits of the business or its normal development, or (b) such sum as the applicant could borrow on the security of his or her interest in the business without injuring the commercial credit of that business, whichever is the greater. | ||
(4) The value of the applicant's home (being his or her ordinary place of residence) and of its normal household chattels shall be included in making an assessment of the value of capital for the purposes of paragraph (1)(d) but only to the extent that the unencumbered value of the house and such chattels exceeds £45,000. The capital value of any other house property in which the applicant has an interest shall be the full market value of that interest. | ||
(5) For the purpose of assessing the value of an interest in house property or land, the Board may obtain a report from the Commissioner of Valuation. If the land consists of farm land, the current value of farm stock, buildings, plant and machinery shall, subject to these Regulations, also be assessed. | ||
(6) The value of an insurance or endowment policy shall be the amount which the applicant could borrow on the security of that policy and shall be calculated in such manner as seems to the Board to be reasonable. | ||
(7) The term 'valuables' for the purpose of paragraph (1)(g) shall not include any personal items of jewellery unless they are of such value that they could reasonably be regarded as being held primarily as an investment. | ||
(8) The value of any debt owed to the applicant shall be the amount which a bank would be prepared to lend on its security. | ||
(9) The value of any tools of the applicant's trade shall be excluded in assessing his capital resources but the expression 'tools of trade' shall not include capital resources of the kind referred to in paragraph (1)(i). | ||
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19 Disposable capital | 19. (1) For the purpose of determining the applicant's disposable capital the deductions set out in the following paragraphs shall be made from his or her capital – | |
(a) where the capital resource consists of land including farm land its value shall exclude any amount which is attributable to a family home. The full amount of any charge, mortgage, loan or debt outstanding on that land shall also be deducted, | ||
(b) where the capital resource consists of house property other than the applicant's family home, plant or equipment of a business or consists of machinery or other equipment of a capital nature (including a car), its value shall be reduced by the full amount of any charge, mortgage, loan or other debt outstanding on it, | ||
(c) in the case of a capital resource other than money, the expense which would be incurred in realising the asset, shall be deducted, | ||
(d) the amount by which any legally enforceable debts which fall to be paid (and are, in the opinion of the Board, likely to be paid) by the applicant in the twelve-month period following the date of application for legal aid or advice (and which have not already been the subject of a deduction from income or capital resources), and | ||
(e) capital payments falling to be made in respect of any loan within twelve months of the date of application for a certificate which have not already been the subject of a deduction from income or capital resources shall be deducted. | ||
(2) The term 'disposable capital' is the aggregate of resources coming within 'disposable capital (farm land)', 'disposable capital (stock and machinery)' and 'disposable capital (resources)' as defined in Regulation 20(2), (4) and (7) respectively. | ||
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20 Capital contribution | 20. (1) No capital contribution shall be payable in respect of that portion of the applicant's disposable capital which is under £2,000. | |
(2) The applicant's maximum capital contribution in respect of that portion of his or her capital resources which consists of farm land shall be based on the market value of the land less any deductions in respect of it which fall to be made under paragraph (1) of Regulation 19 and for the purpose of the remaining paragraphs of this part of these Regulations the market value thus reduced shall be referred to as 'disposable capital (farm land)'. | ||
(3) The applicant's maximum capital contribution in respect of that portion of his or her capital resources which consists of farm land shall, subject to the provisions of paragraphs (l) and (2), be as follows | ||
(i) if he or she is a fulltime farmer, namely, a person who engages in farming and whose gross income from all sources other than farming does not exceed £2,000 per annum - | ||
(a) where the disposable capital (farm land) is £50,000 or less, a contribution of £23; | ||
(b) where the disposable capital (farm land) is between £50,000 and £200,000, a contribution of one per cent of the amount by which the disposable capital (farm land) exceeds £50,000, plus £23: | ||
(ii) if he or she is a person who has farm land but is not a fulltime farmer as defined in paragraph (i) and who also has income from a source other than farm land (in the remainder of this paragraph referred to as 'the income') the maximum capital contribution in respect of that portion of his or her capital resources which consists of farm land shall be the amount specified in paragraph (i) plus | ||
(a) where the gross amount of the income is over £2,000 but not more than £2,500, a contribution of one tenth of one per cent of the disposable capital (farm land); | ||
(b) where the gross amount of the income is over £2,500 but not more than £2,750, a contribution of one fifth of one per cent of the disposable capital (farm land); | ||
(c) where the gross amount of the income is over £2,750, a contribution of one fifth of one per cent of the disposable capital (farm land) plus one fifth of one per cent of the disposable capital (farm land) in respect of each £250 or portion of £250 by which the income exceeds £2,750. | ||
(4) The maximum capital contribution in respect of that portion of the applicant's capital resources which consists of farm stock or machinery shall be based on the market value of that stock or machinery less any deductions which fall to be made under the provisions of paragraph (1) of Regulation 19 and for the purpose of the remaining paragraphs of this Regulation the value thus assessed shall be referred to as 'disposable capital (stock and machinery)'. | ||
(5) Subject to the provisions of paragraphs (1), (4) and (6), the maximum capital contribution in respect of that portion of the applicant's capital resources which consists of farm stock or machinery will be one half of one per cent of the disposable capital (stock and machinery). | ||
(6) Notwithstanding the provisions of paragraph (5) the capital contribution to be paid in respect of dry stock shall be such amount as the Board, following consultation with the appropriate authorities, shall determine. | ||
(7) The maximum capital contribution in respect of that portion of the applicant's capital resources which consists of resources other than those referred to in paragraphs (1) to (6) shall be based on the value of those resources assessed in accordance with the provisions of these Regulations less any deductions in respect of those resources which fall to be made under the provisions of paragraph (1) and in the following provisions of these Regulations the value thus assessed is referred to as 'disposable capital (resources)'. | ||
(8) The maximum capital contribution in respect of that portion of the applicant's capital resources which consists of resources other than those referred to in paragraphs (1) to (6) shall, subject to the provisions of paragraphs (1) and (7) be as follows - | ||
(i) where the disposable capital (resources) is £52,000 or less, two and a half per cent of the disposable capital (resources); | ||
(ii) where the disposable capital (resources) is over £52,000, the contribution will be the sum specified at paragraph (i) plus ten per cent of the amount by which the disposable capital (resources) exceeds £52,000. | ||
(9) Notwithstanding the foregoing paragraphs of this Regulation, the maximum capital contribution payable in respect of the applicant's family home where the unencumbered value of the home exceeds £45,000 shall be one per cent of the amount by which such value exceeds £45,000 provided that the contribution payable in respect of that portion of the unencumbered value which is under £60,000 does not exceed the applicant's income contribution. | ||
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21 Contributions by persons in receipt of legal aid or advice | 21. (1) The contributions, including the maximum income and capital contributions payable by a person in receipt of legal aid or advice under this Part, may be varied or waived having regard to sections 24, 25, 26, 27, 28 and 29 of the Act of 1995 and these Regulations. | |
(2) The contributions will be payable in addition to any sum which the legally aided person may be required to pay out of costs and damages awarded to him or her in connection with any matter in respect of which legal aid or advice or both was provided by the Board under the Act of 1995 and these Regulations. | ||
(3) Subject to paragraphs (1) and (2), the actual contribution to be paid by the legally aided person shall be the amount which the Board expects to expend on providing the legal aid or advice or both which is sought, or the total of the maximum income and capital contributions (assessed in accordance with the provisions contained in paragraphs (4) to (9) of this Regulation), whichever is the less. If, however, the actual contributions requested by the Board are less than the total of the maximum contributions referred to and it appears later that the actual cost of providing legal services will be greater than the expected cost, the Board may increase the applicant's contributions accordingly but not above the total of the maximum contributions. | ||
(4) A capital contribution shall be payable only where the legal services provided include legal aid. | ||
(5) The contributions payable by an applicant will normally be payable in advance of the granting of legal services. Exceptionally, however, contributions may, at the discretion of the Board, be paid by instalments over a period not exceeding twelve months from the date of acceptance of the offer of legal aid or advice but this method of payment shall apply only if the Board is satisfied that the applicant cannot obtain credit elsewhere, or that it would cause hardship, or would be unreasonable in all the circumstances, to require payment in advance. | ||
(6) Contributions may be paid either at centres, directly to the Board or in such other manner as the Board may decide. | ||
(7) It shall be the responsibility of the Board to take such steps as it considers necessary, including, if appropriate, legal proceedings, to ensure that contributions are actually collected and paid to the Fund. | ||
(8) If the total contribution paid by a legally aided person exceeds the cost to the Board of providing him or her with legal aid or advice or both, the balance shall be refunded to that person. | ||
(9) In the case of an applicant whose maximum income contribution is assessed at £23, the Board may either waive the contribution or accept a lower contribution if it considers that it would cause that person severe hardship to pay the maximum contribution. This provision shall apply also where an applicant is required to pay both an income and a capital contribution, and the total amount payable is £46. | ||
(10) The Board may grant legal aid or advice to persons who are in receipt of social welfare benefits or allowances as their only source of income for a maximum income contribution of £23 for legal aid and £4 for legal advice payable in advance. | ||
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Part 6 LAW CENTRES | ||
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22 Location of Law Centres | 22. (1) In deciding on the location of law centres, the Board shall have regard to - | |
( a ) the need to provide reasonable access to their services on a nationwide basis, | ||
( b ) the desirability of providing, so far as possible, ready access to their services in the areas where the need for those services is greatest, and | ||
( c ) the need to use available resources in a way likely to result in maximum benefit for persons in need of legal aid or advice | ||
and in considering these matters the Board shall take account of any views expressed by local and other interests but the decision finally in each case shall be a matter entirely for the Board. | ||
(2) In deciding whether the services of a solicitor should be made available at a centre other than a law centre, the Board shall have regard in particular to - | ||
( a ) the advantages inherent in providing legal aid or advice in centres having the capacity to provide a wider range of social services, and | ||
( b ) the cost advantages of providing legal services through existing social services outlets. | ||
(3) The Board may make services available in any area on a part-time basis if it considers that to do so would be in the interests of providing reasonable access to legal aid or advice for persons who would otherwise find it difficult to gain access to such aid or advice. | ||
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23 Management of Law Centres | 23. A member of the staff of each law centre shall be responsible to the Board for the proper management of the centre and shall follow such instructions in relation to the management of the centre as may be given by the Board from time to time. | |
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24 Duties of staff of the Board | 24. (1) The question as to whether any particular action taken by a member of staff of the Board is in compliance with the terms of the Act of 1995 and these Regulations shall be a matter for the Board. | |
(2) The duties of a member of staff of the Board shall, subject to the provisions of paragraph (3), include the duties to - | ||
( a ) provide legal aid and advice in accordance with the provisions of the Act of 1995 and these Regulations; | ||
( b ) consider in respect of each application for legal aid or advice or both whether it would be in the applicant's better interests to obtain services other than legal aid or advice either prior or as an alternative to such legal aid or advice and, if the staff member considers that such other services should be availed of, to advise the applicant as to how those services might be obtained, and to advise him or her also that if he or she is dissatisfied, and still wishes to have legal aid or advice, his or her application can be referred to the Board for its consideration: | ||
( c ) advise applicants of the financial eligibility conditions attaching to the grant of legal aid or advice, including the fact that their means may be investigated and that, in carrying out this investigation, it may be necessary to obtain reports from other bodies; | ||
( d ) express an opinion in writing to the Board (in the case where a certificate is applied for) as to whether a certificate should be granted; | ||
( e ) explain the nature of the commitment entered into by the applicant in signifying his or her acceptance of legal aid or advice or both including the fact that he or she is undertaking to pay a contribution and is agreeing that any costs or damages recovered will be paid to the Fund in accordance with the Act of 1995 and these Regulations; | ||
( f ) explain to the applicant that he or she will be personally liable for any costs that may be awarded against him or her in the proceedings; | ||
( g ) explain to an applicant who has been granted a certificate that it will not be possible to take any action under the Act of 1995 and these Regulations which is outside its scope; | ||
( h ) in the case of an applicant who has been granted legal aid or advice, report to the Board on any change in the applicant's financial circumstances or any other significant development of which the staff member becomes aware which might render the applicant ineligible for legal aid or advice, might affect the contribution payable by him or her which might cause the Board to revoke, terminate or vary the scope of any certificate issued to him or her; | ||
( i ) provide a report on any aspect of the case of a person in receipt of legal aid or advice which may be sought by the Board; | ||
( j ) advise any applicant who has been refused legal aid or advice of the appeals procedure, and | ||
( k ) take such action in relation to the recovery of contributions, costs and damages as may be directed by the Board. | ||
(3) The Board may assign to staff of the Board the performance of any of the duties enumerated in paragraph (2) which do not, in the opinion of the Board, need to be carried out by solicitors of the Board. | ||
Given under my Official Seal, this 17th day of September, 1996. | ||
MERVYN TAYLOR | ||
Minister for Equality and Law Reform. | ||
EXPLANATORY NOTE | ||
These Regulations give effect to the Civil Legal Aid Act, 1995 . They make various provisions for the grant by the Legal Aid Board of legal aid and advice in civil cases. | ||
The Regulations make provision for the making of applications for legal aid and advice to the Legal Aid Board, the consideration and processing of such applications by the Board, the issue of legal aid certificates, the amendment, termination and revocation of such certificates by the Board, the criteria governing financial eligibility for legal aid and advice, the location and management of Law Centres and the duties of staff of the Legal Aid Board. |