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

FLAC unveiled its annual report for2013 on 7 July, revealing thatalongside its advocacy and policy

work, the organization had helped some27,546 people directly with their legalproblems through its national telephoneinformation line and network of legaladvice centres around Ireland.

Launching the report, Chief Justice SusanDenham said “My wish is that justice isdone for the people of Ireland in terms oftheir access to the legal system. Rights aremeaningless without access. FLAC isplaying an important role in making rightsa reality for thousands of people.”

Both the Chief Justice and FLAC’schairperson Peter Ward SC highlightedthe vital contribution made by volunteerlawyers who gave their time and expertiseto the free confidential FLAC clinics run inpartnership with Citizens InformationCentres around the country. Chief JusticeDenham said “Each lawyer is a represent -ative of the profession. Each time theytreat a client with courtesy, respect andprofessionalism, that is a victory for thejustice system. I have no doubt that this iswhat happens in all FLAC centres acrossthe country".

FLACs 2013 Annual Report shows thatthere are free legal advice centres in 81locations around Ireland of which 73return data to the organisation. This datashows that there were at least 13,805 visitsto FLAC centres in 2013. FLAC’s DirectorGeneral Noeline Blackwell said that theoverall increase in queries showed acontinuing pressure for people to havetimely access to the information and accessthey need to deal with the many legalrelationships everyone has in our society.

The main questions that people raisedwere family problems, employment issuesand debt worries. Calls to the telephoneinformation service were up 10% over2012. The line also saw a sharp rise inhousing law issues, particularly the rightsand responsibilities of landlords andtenants, recording an increase of 83% over2012. Questions about neighbour disputesand breaches of contract also rose amongthose phoning for information.

A former FLAC volunteer herself, theChief Justice commented that “it is quiteobvious that the Great Recession, whichhas blighted the lives of so many Irishpeople, has created an increasingworkload at FLAC.” Quoting what she

called ‘eye-opening’ statistics from thereport, she went on to say that the rise incredit and debt queries to FLAC “is notsurprising in these challenging times” andshe noted that FLAC was “continuing itswork advocating fairness for those on lowincomes dealing with personal over-indebtedness in these very difficult times”.

FLAC Chairperson Peter Ward SCwelcomed the Chief Justice to the FLACoffices, where the launch was held. Henoted the hard work of the organizationover the past year and particularly themassive contribution of the hundreds oflegal volunteers.

An intervention from Columb Fortune,who works on the legal information andreferral line, outlined its role in helping thealmost 14,000 people who used it toaccess justice last year (see box on page9). He underlined its role as a frontlinetool for people to start addressing theirlegal problems.

FLAC Director General Noeline Blackwellthanked the Chief Justice and all present,noting that when Mrs Justice Denham hadherself been a FLAC volunteer in the 1970s,in centres on Mountjoy Square andMolesworth Street, the legal problemscoming into FLAC were broadly the sameas today. Family law (then called‘interpersonal relations’) and debt wereamong the main issues raised. She noted theincreasing complexity of issues presentingon the phoneline and in centres, reflectingthe more complicated arrangements ofpeople lives but also requiring much moretime and effort from volunteers and phoneline information providers.

She said “It’s not just the number ofenquiries that we should note, but also thatpeople seem to have more complex

C ontinued on page 8

Steady rise in need for legal supportsrevealed in annual report 2013

Chief Justice Susan Denham launching FLACannual report for 2013

A woman who was grantedSubsidiary Protection in theState has been given leave by the

High Court to challenge a refusal tobackdate her Child Benefit payments.

Teresa (not her real name) arrived inIreland with her husband in 2006 andapplied for asylum. She gave birth to theirson two years later. The couple’s asylumapplication was refused but they thenapplied for Subsidiary Protection, which isprovided for under an Eu Directivedealing with qualification for refugeestatus or other international protection.

The Directive describes SubsidiaryProtection as applying to someone “whodoes not qualify as a refugee but in respectof whom substantial grounds have beenshown for believing that the personconcerned, if returned to his or hercountry of origin ... would face a real riskof suffering serious harm...”

Teresa applied for Child Benefit in respectof her son but was refused on the groundsthat she did not have a legal right to residehere and did not satisfy the HabitualResidence Condition (HRC). Eventually, in2012, the couple were granted SubsidiaryProtection and Teresa was later awardedChild Benefit dating from when they hadbeen given Subsidiary Protection.

Teresa appealed that decision, seeking tohave the payments backdated to when herson was born or when she first applied forbenefit. She referred to a judgment by theHigh Court in 2011, which said: “Thedetermination of an asylum applicationdoes not have as its purpose or outcomethe discretionary grant or refusal ofrefugee status by the Minister ... Anasylum seeker is a refugee as and whenthe circumstances defined in the GenevaConvention arise and apply. Thedetermination of the asylum application ispurely declaratory of a pre-existing state...[D (a Minor) v Refugee Applications

Commissioner [2011] IEHC 33].

That judgment had been quoted in adecision recorded in the Annual Report ofthe Social Welfare Appeals office for2011. The Appeals officer in that caserelied on the High Court judgment to holdthat a woman who had been recognised asa refugee should have her Child Benefitpayments backdated to when her son wasborn, some months after she arrived inthe State.

Teresa, who was represented by FLAC,argued that Subsidiary Protection shouldbe treated in the same way as refugeestatus and her entitlement to protectionshould be dated back to when she firstapplied since the eventual decision wasbased on the facts as they were when shefirst applied.

Her appeal was rejected without an oralhearing although she had requested one.The Appeals officer relied on anamendment to the Social WelfareConsolidation Act that had been passed in2009, after Teresa’s first application forChild Benefit. The amendment providedthat no-one in the asylum process couldsatisfy the Habitual Residence Condition,even if they were subsequently recognisedas refugees or given permission to remainin the State, with the result that paymentscould not be backdated to cover periodsin that process.

Teresa relies in her judicial reviewapplication on Eu Directive 2004/83/EC,which says that persons recognised as inneed of Subsidiary Protection should beentitled to the same “core” social securitybenefits as citizens of the host state,including “parental assistance” and arguesthat this should apply from the beginning.Her case should help to clarify themeaning of the Directive and the statusand entitlements of other people inSubsidiary Protection.

flac News | Vol. 24, No. 2

in this edition...

Steady rise in need for legal supportsrevealed in annual report 2013 1, 8

Woman in Subsidiary Protectionchallenges refusal to backdate Child Benefit 2

Recovery of costs from legally aidedclients potentially inequitable 3

Small advance for Trans teens, but no date for Gender Recognition Bill 3, 7

o’Brien v Permanent TSB Finance(PTSB) 6

Rise in calls to FLAC over lifetime of recession 9

FLAC Volunteer Golden Pin AwardsScheme 10

FLAC Legal Information Booklets 10

Focus on FLA C :

Columb Fortune 11

PILA update:

PILA welcome new Project officerEamonn Tansey 12

PILA hosts Eu Treaty Rights LegalEducation Session 12

High-level group on access to a lawyer 12Robbie Sinnott 13

Rent receivers: unclear law meanstenants caught in crossfire betweenbanks and landlords 14

Social Welfare & Pensions Bill may put people at risk of destitution 15

Ireland’s examination under ICCPR 16Work progresses on Economic, Socialand Cultural Rights Shadow Report 16

FLA C NEWS is published quarterly byFree Legal Advice Centres Ltd., 13 Lower Dorset Street, Dublin 1.

Editors: Amy Smyth & Yvonne WoodsContributors: Noeline Blackwell, MichaelFarrell, Columb Fortune, Rose Gartland, AmyHeffron, Paul Joyce, Gillian Kernan, GeraldineMurphy, Yvonne o’Sullivan, Rachel Power,Robbie Sinnott, Amy Smyth, Fionn Toland,Peter Tyndall, Kim Watts, Yvonne Woods,Zsé Varga

Photos by FLAC, Derek Speirs

Layout & Printing: Printwell Design, D3

ISSN 07914148The views of individual contributors do notnecessarily represent the views of FLAC.

2 F L A C N E W S l A P R I L – J U N E 2 0 1 4

Woman in SubsidiaryProtection challengesrefusal to backdate Child Benefit

Recovery of costs from legally aidedclients potentially inequitable

The Civil Legal Aid Act 1995 governsthe provision of legal advice,assistance and representa tion in

non-criminal matters through the Legal AidBoard. unlike criminal legal aid, civil legal aid(that is, for matters that do not relate tocriminal law) is not free. People who aregranted civil legal advice and/or aid must paywhat is called a contribution to the Board,save in limited circumstances, such as awaiver for reason of hardship.

Where a person receiving legal aidsuccessfully recovers money or property,the Legal Aid Board will seek to recoverthe costs it incurred in providing legalservices to the person. Section 33(6) ofthe Act confers this right on the Board,subject to certain exceptions outlined inSubsection 8 of the same section.

Section 33(8)(a)(i) provides that “TheBoard shall waive any right to any moneyor other property to which it is entitledunder this section, to the extent that suchmoney or other property consists of ahouse or portion thereof... being thenormal place of residence of the recipientof legal aid or advice concerned”.

From an initial reading of the legislation, itwould appear that there are two possibleinterpretations of this provision.However, FLAC is concerned that theway in which the Legal Aid Board haschosen to interpret the legislationarguably gives rise to a serious inequity.

Section 33(8)(a)(i) is being interpreted insuch a way that allows the Legal Aid Boardto recover costs where the normal placeof residence, or family home, is sold onfoot of legal proceedings in which theBoard was acting on behalf of the client.

If, for example, in family law proceedings aproperty adjustment order is made suchthat the family home is to be sold, thenSection 33(8)(a)(i) would not prevent theLegal Aid Board from recovering costsfrom the proceeds of sale on the basis thatthe claim is not against the house itself (asthe normal place of residence) but againstthe proceeds of sale of the house. Thisapproach means that in the event that thefamily home is sold, the Legal Aid Boardwill be entitled to recover its costs fromthe proceeds of sale.

FLAC suggests an alternative interpreta -tion that follows natural and constitutional

justice: that the section prevents a claim inrespect of money realised from the sale ofthe family home, because the proceeds ofsale of the family home constitutes aportion of the family home. We believethat as the family home is excluded for thepurposes of assessing an applicant’seligibility for legal aid, the family homeshould be exempt from the recovery ofcosts.

unfortunately, according to the Legal AidBoard’s Circular on Legal Services(January 2007), the approach adopted bythe Board is the one favouring therecovery of costs from family home sales:

“Sale of family home/proceeds aredivided. Where the family home issold, section 33(7) provides thatthe Board shall recover its costsfrom the proceeds of sale.”

This has significant implications for legalaid clients. In the event that a court ordersthe sale of the family home on foot ofseparation or divorce proceedings, thefunds raised by this sale may be the onlyassets or capital available to the oftenvulnerable parties who are availing of civillegal aid. In this case, once the Board hasrecovered its costs, the legal aid client maybe left with little or nothing.

The issue was most recently brought toFLAC’s attention when a legal aid clientwas referred to FLAC by a local TD. TheLegal Aid Board was seeking to recoversubstantial costs from the client, whichshe found extremely difficult to meet.FLAC raised concerns with the Boardabout the way in which the costs had beencalculated and the lack of clarity regardingits interpretation of hardship.

The decision of the Legal Aid Board torecover costs on foot of the court-ordered sale of the family home is aworrying one and, in addition, wherethere is clearly a situation of hardshipcreated by this intention to recover costs,FLAC queries why the Board would fail tomake use of provisions in the legislationthat allow for a waiver.

FLAC is committed to ensuring that thebasic human right of access to justice isrespected, protected and promoted, andwill seek to work with the Legal Aid Boardto avoid inequitable practices ormisapplication of protective procedures.


3F L A C N E W S l A P R I L – J U N E 2 0 1 4

Small advancefor Trans teens,but still no datefor Gender

Recognition Bill

Minister for Social Protection JoanBurton announced Cabinet approvalfor new Heads of a GenderRecognition Bill on 17 June. Thisfollowed criticism of the previousHeads of the Bill by an oireachtasCommittee and in a Dail debate inMay.

The new Heads of Bill (a skeletonversion of the proposed Bill) wouldallow young trans people between theages of 16 and 18 to obtain recognitionin their preferred gender, but only withparental consent and letters from twodoctors, and if a court agrees toexempt them from the overallminimum age limit of 18. The new draftalso drops a provision that would haveallowed trans persons to be excludedfrom competing in some sports.

These small steps forward are to bewelcomed but there is still no changein the requirement that married transpersons must divorce as a pre-condition for recognition in theirpreferred gender. And, crucially, thereis still no date set for when the finalisedGender Recognition Bill will bepublished,

The Heads of Bill have now been sentto the Parliamentary Counsel’s officeto be worked up into the final version,which is a notoriously slow process,and there is no guarantee that it will bepublished, much less passed, before theend of the year.

Meanwhile the High Court has fixed adate for hearing new legal proceedingsby Dr Lydia Foy on 4 November this

Continued on page 7

F L A C N E W S l A P R I L – J U N E 2 0 1 44


Legal Aid Board conference focuses onCivil Legal Aid in a changing world

On Wednesday 18 June 2014 theLegal Aid Board held its annualconference in Dublin with the

theme of ‘Civil Legal Aid in a RapidlyChanging World’, with speakers includingFLAC Director General NoelineBlackwell.

other speakers addressing the gatheringwere Legal Aid Board CEo Dr MolingRyan, its Chairperson Muriel Walls, uKProfessor Roger Smith, Canadian Dr AbCurrie and Mr Herman Schilperoort ofthe Dutch state legal aid body.

Muriel Walls discussed the policy andlegislation underpinning the provision ofcivil legal aid in Ireland. She remindedattendees of the eligibility requirementsand contributions to be made by legal aidrecipients. In addition, she spoke aboutthe remit of the Board under mandate,noting in particular that tribunals havebecome far more legalistic since theintroduction of the Civil Legal Aid Act1995. To date, the only tribunal for whichlegal aid is available is the Refugee AppealsTribunal but, as noted by Ms Walls, thiscould easily be extended by Ministerialorder. She did, however, note that theLegal Aid Board does not have thecapacity to deal with further tribunalwork and additional resources would beessential were the remit of the Board tobe extended.

Professor Roger Smith spoke about‘Technology as an Enabler of Legal ServiceDelivery’ and outlined the need for theprovision of legal services to move withthe technological times and become moreadept in an information age.

FLAC Director General NoelineBlackwell spoke on the right to legal aidand whether it is rigid or discretionary. Inher presentation, Noeline spokecomparatively on the systems of criminallegal aid and civil legal aid in Ireland and onhow the eligibility criteria for criminallegal aid is discretionary whereas theeligibility for civil legal aid is rigid. Shedrew parallels between the provision ofhealth care by discretionary medical cardsand civil legal aid and how a severe illnessor disability often resulted in adiscretionary medical card being awarded.

Noeline observed that FLAC had raised

concerns in a pre-recession report thatthe number of solicitors operating thecivil legal aid scheme across the countrywas far too low; that entire counties wererelying on one small legal office. When therecession hit, it was clear that additionalpressures would be put on the alreadystretched resources of the Board.

Noeline noted that, in civil matters,because the issue is not one of criminaldefence, regardless of the gravity of theconsequences, legal aid will only beavailable to those who can slot themselvesin to a ‘rigid, entirely inflexible frame work’.She suggested that the tools are availableto put a civil legal aid system in place thatwould vindicated the right to civil legal aidas part of the right of access to justice andthat the way to go forward with this is theuse the criteria in place for the(discretionary) system of criminal legal aid.

A theme that was constant throughoutthe conference was the need for moremethods of alternative dispute resolutionin family law cases. Noeline Blackwellspoke of the need for a closer linkagebetween mediation and law, and JohnMcDaid, Head of Civil operations withthe Legal Aid Board, spoke at length aboutthe need to adapt an integrated approachin facilitating the resolution of disputes infamily law. Mr McDaid spoke of a new

pilot scheme the Board are operating inCork that will require legal aid applicantsin family separation and divorceproceedings to attend and informationsession on mediation, before they will beeligible for legal aid. Among others, thepurpose of this scheme is to incentivisealternative routes to dispute resolution,and to dissuade applicants from turning tothe courts as their first port of call forresolving legal issues. This, in turn, wouldalleviate some of the pressure on the LawCentres.

Dr Ab Currie spoke to attendees on theCanadian Legal Aid system and thereforms that it has seen over the pastseveral years. Mr Herman Schilperoort ofthe Dutch Legal Aid Board also tookattendees through a detailed descriptionof how legal aid functions in TheNetherlands, and outlined the system inplace there called rechtsbijstand.

The conference offered much food forthought and highlighted again the need forthe rights of those most marginalised insociety to be respected, protected andpromoted.

You can read Noeline Blackwell’spaper to the conference atwww.flac.ie/news

Noeline receives Honourary Doctoratefrom University College Dublin

FLAC DirectorGeneral NoelineBlackwell receives herhonorary doctoratefrom ProfessorAndrew Deeks,President of universityCollege Dublin.



Ombudsman: an alternative path to justiceby Peter Tyndall, Ombudsman & Information Commissioner

Iwas very pleased to be appointed asombudsman and Information Com -missioner in succession to Emily

o’Reilly, who, along with her pre -decessors, had developed a well regardedand effective ombudsman service forIreland. This year marks the 30thanniversary of the ombudsman’s office inIreland and will be celebrated with aconference later in the year in partnershipwith the IPA.

The ombudsman and FLAC haveconsiderable synergies, particularly wherethe individuals looking to pursue theirconcerns are in dispute with a provider ofpublic services. With access to the courtsincreasingly difficult, and with the formalsystem of justice seeming intimidating tomany, the ombudsman offers a com -plement ary route to redress which isinquisitorial rather than adversarial, andwhich has other distinctive characteristics,not least a concern about addressingsystemic failings in services.

The ombudsman is best understood aspart of a system of administrative justice.When service users cannot resolve theircomplaints about public services, theyneed access to routes to redress. Thesecan include courts, tribunals andombudsmen. For most dissatisfied serviceusers, the ombudsman offers a free,impartial route to redress.

All of the elements of the administrativejustice system have one importantcharacteristic in common, they areobjective arbiters and not advocates forcomplainants or agents of serviceproviders. In other words, they considerthe facts of each case on its merits anddecide whether something has been donewrongly, or whether something thatshould have been done has not been done,and if so whether the person complaininghas suffered an injustice.

If the person complaining has suffered aninjustice, some of the other distinguishingfeatures of the ombudsman come to thefore. Firstly, the ombudsman will act toensure that the individual gains redress.often, the principle which underpins thisis that the person who has suffered aninjustice is put back into the situation theywould have been in had the error notoccurred. This might mean financial

redress in respect of any loss suffered oraccess to a service which had previouslybeen wrongly denied. An ombudsman’swork does not stop with the judgement,unlike other systems of justice, butcontinues until the wrong has beenrighted.

The second aspect of an ombudsman’swork which distinguishes us from otheraspects of the administrative justicesystem is the emphasis on identifyingsystemic faults, problems with services,systems or procedures which make itlikely that the injustice suffered by anindividual complainant may have happenedto others. Many individuals come toombudsmen motivated by a desire tomake sure that what happened to themwill not happen to anyone else. They wantthe ombudsman to put things right.

Failure can occur because of individualerror, because of problems with trainingor systems, because of poor managementor even, because thelaw has unintendedconsequences. Myoffice is skilled inidentifying whereproblems are arising

from wider causes, and are likely to haveaffected other people, or to do so in thefuture. In these circumstances, ourrecommendations go beyond theindividual case and look to bring aboutchanges in the way that services aredelivered to ensure that problems do notrecur. I may also seek changes in the law,where this is itself leading to injustice.

A third important feature is that theombudsman goes beyond the law, to lookat issues such as fairness and goodadministration. Even where a publicservice provider has acted in keeping withthe relevant legislation, we can and doidentify unfairness or inconsistency and goon to uphold a case.

So for those of you offering advice tocallers to your centres, you may want toconsider whether, in some instances,helping or encouraging individuals tocomplain to my office would be the mostappropriate response. usually, we willlook at cases after the individual hasalready complained to the providerconcerned and failed to get a satisfactoryoutcome. You can find out more aboutour work on our website, which alsocontains an on-line complaint form, or bycalling 1890 22 30 30.

• Peter Tyndall was appointedOmbudsman and InformationCommissioner in December 2013.The Ombudsman’s Annual Reporthas just been published and isavailable to download atwww.ombudsman.ie

What does the Office of the Ombudsman do?The Office of the Ombudsman is an independent, impartial and free-to-use service. The Ombudsman examines complaints from the publicagainst public bodies such as Government Departments, local authorities,the HSE (including public hospitals) and third-level education bodies.Before making a complaint to the Ombudsman, you must have tried toresolve your problem with the public body.



The most recent finding of theFinancial Services ombudsman(FSo) in the case of O’Brien v

PTSB Finance in May 2014 will haveimplications for people who tried to endtheir Hire Purchase agreements andreturn the hired goods (usually a motorvehicle) over the past six years, only to berefused by the provider. However time isof the essence, as the clock is alreadyrunning for people who may still be in aposition to bring similar complaints to theombudsman.

Background: The Hire Purchaseagreement and first attempt to end it

In May 2008, some six years ago, Davido’Brien entered into a 60-month HirePurchase agreement with PTSB for amotor vehicle. under the terms of thisdeal, if he made all the payments, he wouldown the vehicle at the end of the 5-yearperiod. However, Mr o’Brien wrote toPTSB in November 2010, attempting toend that agreement under the terms ofSection 63 of the Consumer Credit Act1995. This section allows a Hirer to end aHire Purchase agreement in writing, handback the goods and pay the owner thedifference between what has already beenpaid (including any deposit) and half theHP price (the total amount owed includinginterest and charges).

In Mr o’Brien’s case, at the time he triedto end the agreement, he was €681 shortof having paid half the HP price. PTSBrefused to accept the termination of theagreement and the return of the vehicleunless he paid this money in advance. Mro’Brien was not in a financial position topay this amount in one sum. Thus, he hadno option but to continue the agreementand so resumed paying the instalments.

The Gabriel case and its implications

In July 2011, the High Court had decidedin the case of Gabriel v Financial Servicesombudsman (also an appeal brought onMs Gabriel’s behalf by FLAC against adecision of the FSo) that the properinterpretation of Section 63 of theConsumer Credit Act 1995 meant that aHirer had a right to end a HP agreementin writing and the owner could not insist

on payment up-front of any monies thenowed. The Hirer would still have to paywhatever sum was owed, but not as a pre-condition to end the agreement. Crucially,this meant that the owner would have toaccept the return of the vehicle.

In September 2011, having become awareof this decision, Mr o’Brien wrote to endhis HP agreement with PTSB a secondtime. This time PTSB accepted the returnof the vehicle. By this point, Mr o’Brienhad paid more than half the HP price, buthe was in arrears with the payments andbetween this and an amount levied foralleged damage to the vehicle, he wasbilled for €847.12 by PTSB when thevehicle was returned. unable to pay thisamount in one lump sum either, anagreement was reached to pay 10instalments of €84.71.

The complaint to the Financial ServicesOmbudsman

In october 2011, Mr o’Brien complainedto the FSo that PTSB had failed toreimburse him for the ten instalments hehad paid under the Hire Purchaseagreement between November 2010,when it incorrectly refused to allow himto end the agreement, and September2011, when it finally came to an end. Heclaimed that he should be compensatedfor PTSB’s mistaken interpretation ofSection 63 of the Consumer Credit Act1995, following the High Court ruling inthe Gabriel case.

In April 2012, the Financial Servicesombudsman dismissed Mr o’Brien’scomplaint, finding that the decision in theGabriel case “is not retrospective” andthat PTSB “cannot be faulted for itsbehaviour as it was acting in accordancewith the then widely acceptedinterpretation of Section 63 (2) of theConsumer Credit Act 1995”.

The High Court appeal and re-investigation by FSO

The following month, in May 2012, Mro’Brien appealed this decision to the HighCourt – which is the only avenue of appealfrom a decision of the Financial Servicesombudsman. In September 2012,solicitors on behalf of the FSo indicated

that it did not intend to contest thisappeal, as it was not satisfied that it hadtaken sufficient account of the decision inthe Gabriel case in reaching its decision inMr o’Brien’s case. The original FinancialServices ombudsman’s finding wasquashed and, by order of the High Court,the matter was sent back to the FSo to beconsidered afresh by a differentinvestigator in that office.

Finally, on 21 May 2014, the FinancialServices ombudsman upheld Mr o’Brien’soriginal complaint from october 2011,finding that in light of the High Courtdecision in the Gabriel case, PTSB wasmistaken in not allowing Mr o’Brien toterminate his Hire Purchase agreement inNovember 2010.

In pursuit of his complaint, Mr o’Brien hadsought compensation of €4690 (whichequalled the extra 10 instalments of €469each that he had to pay). The FinancialServices ombudsman awarded Mro’Brien €3,000 of this amount, as itconsidered that he had also had thebenefit of the use of the vehicle during theten-month period in question and that hecould have terminated the agreementearlier, at the point where he had paid halfof the total HP price.

In addition, the Financial Servicesombudsman awarded an additionalpayment of €500 in recognition of thevery long period that had elapsed duringwhich Mr o’Brien had not had access toor the use of the money he used to paythe instalments. Therefore he received atotal award of €3,500.

The potential application of thisdecision to other Hirers

FLAC supported the Gabriel appeal in theHigh Court as a test case, aware thathundreds of hirers were being blocked intheir attempts to end their Hire Purchaseagreements and return a vehicle that theydid not own to the rightful owner. This isa right enshrined in legislation. When Mro’Brien, aware of the importance of theGabriel decision, attempted to obtainredress and was frustrated by the decisionof the Financial Services ombudsman,FLAC similarly supported his appeal.

O’Brien v Permanent TSB Finance (PTSB): Implications for people frustrated in their attempts

to end Hire Purchase Agreements



One thing is now clear from the reviseddecision of the Financial ServicesOmbudsman of May 2014: Any Hirer whocan show that she or he tried to end aHire Purchase agreement in writingunder section 63 of the ConsumerCredit Act 1995, and who was notallowed to do so by the owner/lender,may have a legitimate right ofcomplaint to the FSO.

It is vital to note, however, that under thelegislation establishing the FSo, a con -sumer is not entitled to bring a complaintif the conduct complained of occurredmore than six years before the complaintis made – the so-called ‘six-year rule’.

If you were in a similar position to Mro’Brien, you might wish to complainabout the conduct of an owner/Lenderwho failed to accept a termination inwriting of a Hire Purchase agreementunder Section 63 of the Consumer CreditAct 1995. However, at the time of writing– June 2014 – you could in theory only goback as far as a lender’s refusal to acceptthe termination of Hire Purchaseagreements from June 2008 onwards.

With every month that passes, this timelimit moves forward.

It is also important to note that in orderto be awarded some form of monetarycompensation by the Financial Servicesombudsman, you will likely have to showthat you sustained some financial loss asa result, such as Mr o’Brien did by havingto pay an additional ten instalments underhis hire purchase agreement.

It is also very important to understandthat in order for the Financial Servicesombudsman to deal with your complaint,you must first have made a complaintto the financial service provider itselfand given it an opportunity to resolve thematter. under the terms of the CentralBank’s Consumer Protection Code, theprovider must attempt to resolve yourcomplaint within 40 business days. If theprovider does not meet this deadline, or ifyou are not satisfied with its decision, youmay refer the matter on to the FinancialServices ombudsman. You can get furtherinformation on the relevant procedures atwww.financialombudsman.ie.

FLAC recommends that any complaints,whether to the provider or to theFinancial Services ombudsman or both, bemade by registered post. You shouldkeep copies of all documents and letters inan organised file and avoid phone contactwith the provider as much as possible. If itis necessary to make any phone calls inrelation to your case, you should note thetime, date and content of the call andalways look for matters to be followed upin writing.

Q You can read more about Gabriel &Anor -v- Financial Services ombuds -man [2011] IEHC 318 athttp://bit.ly/GabrielvFSo

Q You can read the full text of thedecision in o’Brien v Permanent TSBFinance at http://bit.ly/oBvPTSB

Q For more information in relation tothe above, please contact the FLACinformation and referral line at lo-call1890 350 250. You can also visit yourlocal FLAC advice centre for a freeconsultation with a volunteer lawyerface to face – details of your nearestcentre are at www.flac.ie/help

Small advance for Trans teens, but still no date for GenderRecognition Bill (continued from page 3)

by Dr Lydia Foy on 4 November thisyear. By then it will be just over sevenyears since the courts held that thefailure to issue Dr Foy with a new birthcertificate in her female gender was abreach of the European Convention onHuman Rights (ECHR).

In her new proceedings Dr Foy is askingthe court to take action to enforce itsruling in her favour made in october2007, or to declare that the ECHR Act2003, which was intended to make theConvention part of Irish law, isineffective and should be amended.

This raises important issues about thelack of respect by the Irish authoritiesfor the ECHR and the significance of thecase is indicated by the fact that theInternational Commission of Jurists hasbeen given permission to join in theproceedings to argue the need foreffective remedies in Irish law forbreaches of the ECHR.

The High Court will review the positionin Dr Foy’s case on 9 october to seewhat, if any, progress has been made inthe meantime but unless there have

been major developments, it will goahead as scheduled on 4 November.

It is long past time to end the shamefultreatment of transgender persons in

Ireland and for the Irish authorities totake seriously their responsibility toimplement the ECHR in our domesticlaw.

Government ‘guarantees’ trans rights atinternational conference

The Irish Government signed an international Declaration in Malta inMay promising to

“ 6. Guarantee the full legal recognition of a person’s gender identity inall areas of life, in particular by enabling the change of names andgender in official documents in a fast, transparent and accessiblemanner, and

“7. Remove abusive and disproportionate requirements for legalgender recognition”

Minister Kathleen Lynch signed the Declaration during a conferencehosted by the Maltese and Swedish governments to mark InternationalDay Against Homophobia and Transphobia (IDAHO).

There was no time limit by which signatories have to change their lawsbut next year’s IDAHO conference is expected to focus more onimplementing the promises made in the Declaration, so Ireland willhave questions to answer if the Gender Recognition Bill has not beenpassed by then.

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F L A C A N N U A L R E P O R T L A U N C H

All photos by Derek Speirs

questions, with those in trouble finding theirlives ever harder to manage. This is why, aswell as giving people basic information andadvice, FLAC also seeks changes to the legalsystem which would make it fairer and allowpeople better access to their rights.Sometimes, they just need to be able to talkto a lawyer but the structures and systemsthat exist often mystify people; they can’tget justice because they can’t negotiate thesystems. our work in 2013 involved gettinginformation and advice to those whoneeded it and also challenging unfair systemswhere they hinder access to justice.”

In this vein, Noeline also took theopportunity to launch another FLACinitiative: a new set of legal informationbooklets. Covering areas of frequentenquiry to FLAC centres and thetelephone information line, the booklets

are free to download from FLAC’swebsite and will also be available inCitizens Information Centres (see page 10for more information). They werecompiled with the invaluable help ofvolunteer lawyers who provided practical,insider insights to the legal areas covered.

The 2013 Annual Report showcases theorganisation’s policy submissions andresearch across its priority areas. Theseinclude laws affecting those on socialwelfare or hit by consumer debt, thoseneeding consumer credit or access to thecivil legal aid system, and the long-standingcampaign for transgender recognition.

The organisation also advanced its goal ofpromoting a human rights and equalityperspective to Government Budgetsduring the year through its Public Interest

Law Alliance project, PILA. Through PILA,the organisation also matched 50 socialjustice organisations needing legal supportwith pro bono legal assistance from lawfirms and barristers and delivered legaleducation sessions to more than 200people in those organisations.

FLAC is grateful to all those whocontributed to its work in 2013.

Top left: L-R: Mary Guy a former volunteer, Maeve Regan of Mercy Law Centre and Chief Justice Susan Denham Top right: L-R: FLAC Chairperson PeterWard SC, Chief Justice Susan Denham and FLAC Director General Noeline Blackwell at the launch of FLAC’s annual report 2013. Bottom left: L-R: Catherine Cosgrave, Director of the Law Centre for Children & Young People; Jennifer White BL; Moya De Paor Solicitor with Community Law &Mediation (formerly NCLC); and Naomi Keenan. Bottom right: L-R: FLAC interns Fredella Surjono, Esther Ham and Rose Gartland.

L-R: PILA volunteer Katie Dawson BL, FLAC volunteer Susan Webster, and FLACVolunteer & Centres Manager Zsé Varga.

L-R: PILA team members Rachel Power, Kim Watts, Ethine Lynch and Mairead Healy.

FLAC’s annual report

can be downloaded at

flac.ie/publications


Continued from front page:



F L A C L I N E S T A T I S T I C S

During 2013, FLAC received 13,741 callsfrom the public to our telephoneinformation and referral line. This was a10% increase on the previous year, andtrends show that the number of calls toFLAC has more than doubled since 2006.In addition to calls from the general public,FLAC also dealt with 222 more complexcalls from organisations seeking second-tier advice in the areas of employment,debt and social welfare last year.

Free legal advice centres also saw a rise inattendance in 2013 with 13,805 peoplecalling in to the 73 FLAC centres aroundthe county participating in our datacollection programme. This was just overa 6% increase on the previous year whendata was collected from the same numberof centres. A combination of increasingdemand for FLAC’s services, more centresparticipating in the data collectionprogramme and new FLAC centres beingset up, saw the number of recordedqueries in FLAC centres treble since2006.

Family law is the most common query onboth the phones and in the centresaccounting for one fifth of all calls and onethird of all visits respectively. on thephones one-third of family queries wereregarding a divorce or separation, one-quarter in relation to custody, access orguardianship of children and roughly one-fifth had a maintenance query. Thisbreakdown is almost identical to familylaw trends the previous year. In thecentres almost half of callers with a familylaw concerns were related to separationand divorce while 30% were concernedwith custody, access and guardianship ofchildren.

Legal services were the second mostcommon query on the phone lines lastyear, with 81% of callers in this categorylooking for details of their nearest FLACcentre. Just over 4% were looking for asolicitor and 3% were looking for details ofanother organisation such as the Legal AidBoard.

Employment continues to be the secondmost common type of query in FLACcentres. one third of callers with anemployment law query had a questionabout their contract with their employer,one quarter wanted to discuss a dismissal,while 16% were being made redundant

and just under 10% were experiencingdiscrimination in the work place.

Credit and debt queries remain high onthe telephone information line (up 10% onthe previous year) and in the centres (upover 26%). Just over half of all callers witha debt-related query were seeking help

with mortgage arrears.

Housing and landlord and tenant calls haveincrease significantly over the past twoyears, increasing by almost 84% on thephones last year alone. Sixty-five per centof housing queries were disputes betweenlandlords and tenants.

Rise in calls to FLAC over lifetime of recession

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FLAC Telephone Information Enquiries

Breakdown of queries to FLAC Information Line

Breakdown of queries to FLAC Centres

Since it was set up in 1969, FLAC hasalways depended on the work ofvolunteers.

FLAC is truly grateful to all volunteerswho provide this much needed andvaluable service free of charge, out of goodwill. Without volunteers, in 2013 alonealmost 14,000 people would have notbeen able to get the legal advice theyneeded to help them to begin to addresstheir legal problems.

our callers cannot afford to pay forprivate legal advice and many of themexperience additional disadvantage andmarginalisation. What FLAC volunteers doby giving their time and skills at the FLACcentres provides a bridge between thedifficulties that people are facing in theirlives and the beginning of the solution tothese difficulties.

Although we have always valued thecontributions of our volunteers, we wantto formally thank you. To this end, we runour FLAC Volunteer Awards Scheme. TheAward consists of enrollment on FLAC’sRoll of Long Service Volunteers, a specialGold FLAC lapel pin and a certificate. Wewill make the presentation andacknowledge the qualifying volunteers atFLAC’s annual Dave Ellis lecture inDecember 2014.

Q To celebrate FLAC volunteers

Q To acknowledge their commitmentand support

Q To let volunteers know that they makea difference in their local communities

Q To encourage volunteering within thelegal profession

Q To raise awareness of the importanceof the work FLAC volunteers carryout in the centres.

The award is presented to volunteers torecognise long-standing and continuousservice and is given to volunteers whohave volunteered regularly and con -tinuous ly for at least the past 3 years. Alllong-standing FLAC volunteers country -wide as well as those contributing to thework of PILA are eligible.

Many Citizens Information Servicesaround the country run legal advice clinics.While these are many and varied, FLAC isproud that most are still part of acountrywide network of FLAC centresthrough the nature and ethos of the

services and the tremendous work doneby the volunteers. as well as taking part inthe data collection programme. So we areinviting all Citizens Information Centresmanagers and staff as well as fellow FLACvolunteers to nominate those long-servingvolunteers who meet the three-yearcontinuous service criteria. If a nominatedvolunteer cannot attend the ceremony inDecember, it will be posted to theirnominating Citizens Information Centre.

our records are sometimes incompleteand we have missed out on somevolunteers who have volunteered muchlonger than 3 years, so if you knowanybody who should qualify for the awardfor their long and regular service, please

do let us know. We would not like toleave anybody out so we need your help!

We hope that your volunteering is apositive and rewarding experience andthat you will continue to volunteer withFLAC for a long time to come. We thankyou again so much for your time, skills andcommitment to FLAC and to helpingpeople in your community.

“Volunteers are unpaid not because

they are worthless, but because

they are priceless”



F L A C V O L U N T E E R S :

In July FLAC launched its new series oflegal information booklets. These aimto provide the public with concise but

informative guides on a variety of legaltopics. Through queries to ourInformation & Referral line and legaladvice centres, we have been able topinpoint the key areas of law impacting onthe lives of our callers. The publicationsare reflective of this research and so aimto provide legal information in focusedareas.

FLAC has produced nine booklets, mostlybuilding on previous FLAC publications.They cover Divorce, Separation,Maintenance, Domestic Violence, FamilyLaw & Children, Wills & Intestacy,Probate and Enduring Power of Attorney.

We have also added a new leaflet on basicrights and duties in Landlord & Tenantlaw, to which we had valuable input fromhousing right body Threshold.

However chief credit for these guidesgoes to the group of wonderful volunteerlawyers who contributed their time andexpertise to revising and expanding theleaflets. This is hugely valuable workwhich will benefit many people all overthe country.

In line with our commitment topromoting access to justice, we hope the

booklets provide reader-friendly explana -tions of legal concepts and procedures.FLAC plans to expand this range ofleaflets over the coming months.

The guides are free to download fromwww.flac.ie and are also available fromlocal Citizens Information Centres.

New legal information booklets aimto make law more accessible

FLAC’s Amy Smyth pictured holding a selection ofthe nine new FLAC legal information booklets

FLAC Volunteer Golden Pin Awards Scheme



Columb Fortune joined FLAC aslegal information and civil legal aidintern in September 2013. He

graduated from uCD in 2010 with aBachelor of Social Science. Initially Columbwanted to work in the area of social policy,but in his final year he took several lawmodules, which led him to realise that histrue passion lay in the law. He pursued thisby completing a Master’s Degree inCommon Law in uCD, graduating in 2012.During this time Columb found that theadvocacy side of law was something thatreally appealed to him so he decided tobecome a Barrister, being called to the Barand graduating from the Kings Inns in 2013.Nonetheless Columb recognises the im -port ance of his social science backgroundwithin his chosen career.

In his undergraduate programme, Columbdid a lot of policy work on issues aroundhousing, health care, welfare and educationwhich he feels really fed into this zest forsocial justice and how it can be underpinnedand furthered by law: “I think it gave me amore rounded view of society and allowedme to explore law in a different way than ifI had gone straight from school to studylaw”. Columb really believes that a moreholistic approach to law is important,particularly in the context of human rightsand social justice. For Columb, sitting theBar was a tough year but also extremelyrewarding and he felt that you really get outof it what you put in. Meeting some reallygreat people and engaging with the law inmore hands-on way was the highlight of histime at the King’s Inns.

Before he started his Master’s programme,in 2010 Columb volunteered with Habitatfor Humanity in New orleans for 4 months

helping with the regeneration project set upto help after the devastating effects ofHurricane Katrina. He credits thisexperience, along with his involvement withthe student legal services in uCD, with hisinterest in working in NGos, in particularwith FLAC.

Columb works specifically on the FLACcampaign area of civil legal aid and access tojustice. He monitors and assesses trends incivil legal aid and assists with campaign workto improve access to justice, such as thecurrent Legal Services Regulation Bill andstrategic litigation opportunities. Throughthis work, he is able to help craft legal andpolicy submissions on how access to justiceelements can be encompassed into legalframeworks. Columb chose this specificcampaign area as he has always beeninterested to see how the rights of thepoorest members of our society arevindicated, whether it is through institutionslike the HSE or through local authority

housing. He saw that it was through thelegal aid system that the most vulnerablemembers of society were accessing theirlegal rights and that was why he has chosenthis campaign area within FLAC to work on.

In addition to his work on Civil Legal Aid andAccess to Justice, Columb also works onFLAC’s telephone information and referralline. This offers callers basic legal informationfor free and in confidence. This summerColumb is also the acting phone linemanager. He says that issues of family lawlike divorce, separation and main tenance aswell as landlord and tenant calls arise quiteregularly when working on the phone line.Quite often his job involves talkingindividuals through court procedures ordocuments that may be quite alien to them.

Columb is also a FLAC volunteer offeringfree legal advice to the public in FLACcentres around Dublin in his spare time. Hedescribes this as a great experience thatgives him face-to-face time with theindividuals that he is helping; he enjoysseeing the relief and clarity that people getfrom getting legal advice on an issue that isworrying them. Columb thinks that thisone-on-one experience is invaluablebecause it has helped him develop both as aperson and as a lawyer.

“Part of being a lawyer is being able tonavigate your way through the emotionalissues and find the real core legal matterthat the person you are helping needs toaddress. once you can tackle that, veryoften the person’s emotion changes, theybegins to realise that there are systems inplace to protect them. They’re not aloneout there,” he explains.

Columb FortuneF O C U S O N F L A C :

While many of us are away onour hard-earned summerholidays, the FLAC centres

are just as busy as during the rest of theyear. However, with many volunteers onholidays and the courts closed in August,we at FLAC face a shortage of volunteers.

This is the third year we have askedvolunteers in Dublin and Cork to make anextra effort and join the FLAC SummerSquad. The aim of the Summer Squad is tokeep the centres going during the summer.

We acknowledge that all our volunteersdeserve a holiday after a busy year.However people need help on an ongoing

basis. Therefore we ask our volunteersto help us to keep the centres goingbetween June and September 2014.

There are a few ways you can help:

Q Sign up as a volunteer if you haven’tdone so yet

Q When you plan to go on holidays, tellus in advance, so we can take intoaccount your absence

Q Volunteer a little extra time on top ofyour regular commitment

Q Fill in at your normal centre

Q Fill in only on certain weeks or days

Q Fill in at a different centre to yournormal one

Any of these or a combination of optionswill help us enormously to ensure thatthe services are still provided smoothly.Just email [email protected] or phone uson 01 887 3600, and we will be delightedto get you on board. Please do get intouch. We really appreciate it.

Last year we had a number of committedSummer Squad volunteers helping FLACto successfully run centres in Dublin andCork. We are so grateful to them.

Thank you in advance.

FLAC Summer Squad – please help!


P ILA regretfully says farewell to Projectofficer Mairead Healy in July. Mairead willleave PILA to focus her energies on her

own organisation, Future Voices Ireland. Maireadhas been vital to the operation of the PILA pro bonoreferral scheme as it exists and continues to growtoday.

However, PILA is delighted to welcome EamonnTansey on board as its new Project officer. Prior tojoining PILA as Project officer Eamonn worked as aLegal and Communications Assistant with FLAC andPILA. From September 2011 to May 2013 Eamonnworked and studied in the Netherlands. During thistime he completed a master’s degree in publicinternational law at utrecht university and workedwith Greenpeace International in Amsterdam,providing legal support to their many campaigns.

Speaking about his new role, Eamonn said “Having worked with FLAC for the past ninemonths, I am fully aware of the amazing work being undertaken by the PILA team. I lookforward to contributing to a project that provides such a valuable resource to NGosand the disadvantaged and marginalised people they represent. of course our workwould not be possible without the generosity of our pro bono solicitors and barristers,who give their valuable time and expertise for free. To contribute to the further successof PILA for the betterment of Irish society will guide my approach to the role of Projectofficer.”

PUBLIC INTEREST LAW ALLIANCEU P D A T E


PILA welcomes new Project OfficerEamonn Tansey

P ILA in conjunction with KoD Lyons held a legal education session on 25 June.The session focused on the area of Eu Treaty rights, looking at issues such asfamily reunification, residency rights and access to social welfare. The education

session was delivered by KoD Lyons solicitor Angel Bello Cortes, who has practised inthis field for a number of years.

During the course of the session, the developing case law of the European Court ofJustice was discussed including a number of ongoing preliminary references from the IrishCourts. Crosscare provided practical Eu Treaty rights case studies based on theireveryday work.

PILA organised this session following a request by Crosscare, and it was targeted atthose with a high level of expertise in this area. organisations that attended the sessionincluded Ruhama, Doras Luimni, Mercy Law Resource Centre and FLAC. Feedback fromattendees indicated that it had been very positive session, and also provided practicaladvice on complex and legally uncertain matters relevant to their everyday work.

PILA hosts EU Treaty Rights LegalEducation Session

June 30 saw the launch of a newIrish Council for Civil Liberties’(ICCL) project on the right of

access to a lawyer in criminalproceedings. PILA has joined theICCL’s high level expert group,comprised of criminal defencelawyers from four jurisdictions,representatives of specialist NGOsand legal representative bodies.

The project was initiated to addressthe implementation gap betweenrights contained in the EuropeanDirective on Access to a Lawyer inCriminal Proceedings and existinglegal defence practice in Ireland.Two timely developments havesince redefined the role of thegroup: the recent Supreme Courtdecision in DPP v Gormley [2014]IESC 17, which established the rightto have early access to a lawyerafter arrest and the right not beinterrogated without having had anopportunity to obtain such advice;and the subsequent direction toGardaí issued by the DPP onattendance of solicitors duringinterviews in Garda stations. Thegroup will now look at ways tofacilitate the smooth introduction ofthe practical exercise of the right ofaccess to lawyer during Gardaquestioning.

The ICCL have also launched the2nd edition of their ‘Know YourRights: Criminal Justice and GardaPowers’ pack to reflect thesechanges to Irish criminal law andprocedure. They are available atwww.iccl.ie

High-level expertgroup on Access to a Lawyer

Ihave a severe visual impairment.According to the 2011 Census, therewere almost 53,000 people in the

Republic of Ireland with a severe visualimpairment – with approximately 52,000being above the age of 18. This figure is setto rise significantly as the average life-expectancy increases (NCBI, 2010).Traditionally, this sector of the populationhas been relatively marginalised, disad -vantaged and discriminated against: forexample, the 2011 Census shows that lessthan 14% of this group is employed(putting them on a par with the TravellingCommunity). A report by AHEAD (2008)showed that students with a visualimpairment are less likely than any othergroup, of ‘normal’ intellectual ability, toacquire places in third level institutes –because reading materials are prone tobeing inaccessible reading materials.

The revolution in information technology inrecent years has created the potential for alevel playing-field for people with a visualimpairment vis-à-vis everyone else. And yetthe inequalities persist, notwithstanding theEqual Status Act (2000) and the anaemicDisability Act (2005). one might expect theState, not least as the primary provider ofinforma tion and services, to be the actorwith greatest responsibility in realising ourequality as human beings, but effectively, weremain second-class citizens, and the Stateshows no interest in effectively ending this.

In order to campaign for our Civil Rights(that is, that current laws be upheld andthat new ones be promulgated), myselfand Pat McCarthy founded the Blind LegalAlliance in 2011.

our first action was to campaign for theright to secret ballot in elections and

referendums. Sighted people have had thisright, as a norm in this jurisdiction, sincethe Ballot Act (1872). Secret ballot is notjust an intrinsic component of liberaldemocracy, but symbolises that the voteris being taken seriously as an equal anddignified member of the community whohas a right to participate in its decision-making. In this way, as the South AfricanSupreme Court put it, “Literally, everyvote counts”. The Canadian SupremeCourt recognised this symbolic impor -tance of the vote when it cited its SouthAfrican counterpart in a ruling involvingvotes for prisoners.

Currently, if a person with a severe visualimpairment wishes to vote, they areexpected to get someone else to vote forthem (despite the Constitution and the1992 Electoral Act prohibiting any personfrom having more than one vote). Theblind voter must ask a ‘trusted friend’ or apresiding officer to vote on their behalf.The instructions are given verbally, in realtime, further diminishing privacy. And ithas happened to me, once the ballot-paperhas been filled, that my preferences havebeen read aloud – broadcast – to all andsundry. We have no way of independentlyverifying our vote. If our proxyinadvertently spoils our ballot, we maynever know.

Not only do developed countries such asBritain, Germany, Australia, Spain, andAustria facilitate secret ballot by all visuallyimpaired voters, but Albania, Moldova,uganda, Ghana and Tunisia are among thedeveloping nations who have implementedaccessible voting, and have, thus, demon -strated the seriousness with which theytake the principle of democracy for all.

Mostly, a specialised system has beendeveloped by which a template (or stencil)is placed over the print ballot paper,allowing the blind voter to markpreferences in the tactile spaces. Butother systems are also in use. Spain uses aphone-voting system, which was pion -eered in Australia. In keeping with theprinciples of universal design, Blind LegalAlliance would favour a multiplicity ofsystems, including a type such as is beingused in Toronto and Australia, which givesblind and sighted people alike the choiceof a secure browser or internet voting.

The current Irish system is totally insecurefor the 52,000 voters in Ireland who havea severe visual impairment. Article 16 ofBunreacht na hÉireann gives us the right tosecret ballot, as does the EuropeanConvention on Human Rights. Section 29of the uN Convention on the Rights ofPeople with Disabilities has the sameguarantee, but since it has only beensigned by the European union, itsrelevance has yet to be tested.

The Irish State has been aware of thisissue since at least 2006, but has notdeemed it important enough to be apriority.

I am challenging the State’s failure to put inplace mechanisms to enable me to vote insecret so that all visually impaired peoplewill have the chance to participate fully inthe decision-making process in Ireland asis our democratic right. The case iscurrently before the High Court.



PUBLIC INTEREST LAW ALLIANCEU P D A T E

PILA was approached by Robbie Sinnott of the Blind Legal Alliance earlier in 2014 to challenge theIrish State’s failure to provide visually impaired persons with mechanisms to vote in secret. PILAplaced the matter through its Pro Bono Referral Scheme and the Blind Legal Alliance was advisedthat a serious point of law had arisen. The right to vote in secret lies at the heart of democracy andshould be fully pro tected.

On behalf of the Blind Legal Alliance, Mr Sinnott (see photograph on left) is challenging the State’sfailure to put in place mechanisms to enable him to vote in secret in the upcoming European andLocal Elect ions on 23 May. The matter is currently before the High Court.

You can keep informed of progresson this case by subscribing to theelectronic PILA Bulletin – details at:www.pila.ie/bulletin



In the face of a potential repossessionsepidemic, banks have begun to appointrent receivers to take effective control

of thousands of investment properties,thereby saving themselves from having toapply to the courts to repossess theproperties. Lending institutions typicallyappoint a rent receiver when the owner ofa private rented property, purchased usinga buy-to-let mortgage, defaults in therepayment of that mortgage. They areusually appointed in cases where landlordsare collecting rent but not passing it on tothe bank to pay a mortgage in arrears. Thereceiver is employed to collect the rentfrom the property directly and pay it overto the bank or lending institution.

There are a number of problems arisingsurrounding the issue of rent receivers.Housing rights body Threshold hasexpressed concerns that “the currentsituation – whereby tenants are caught inthe crossfire between landlords and bankswhen properties go into receivership –cannot be allowed to continue.” The lackof clarity in this area has led to confusionon part both of the tenant and of the rentreceiver. When a property goes intoreceivership, the tenant is obliged to payrent to the receiver, so it would appearthe receiver is taking on the role oflandlord. However, often the receiver failsto take on the responsibilities of thelandlord, such as carrying out repairs tothe property or maintaining minimumrequirements. There is a lack of regulationand clear legislation in this area, withhousing rights groups seeking a revision ofthe Residential Tenancies Act 2004 tostipulate that the rent receiver becomesthe ‘landlord in law’ when they take overthe property, thus taking on responsibilityof landlord duties.

In the meantime, all parties must workwithin current law. Threshold has puttogether guidelines to help if a rentreceiver has been appointed to theproperty you are renting, as follows:

1. Your tenancy continues and you havethe right to remain in the property.

2. If you have a current lease, thereceiver should honour the pre-existing tenancy terms and conditions.

3. There is a legal obligation on you to signa new lease if you do not wish to do so.

4. Your tenancy can only be ended byserving of valid notice in accordancewith the Residential Tenancies Act 2004.

5. The receiver must provide you with adeed of appointment for youraccommodation.

6. Get the receiver to confirm whetherthey will take on the responsibility ofreturning your deposit at the end ofthe tenancy.

7. Get confirmation from the receiverthat in addition to accepting the rent,they will take on responsibility for on-going tenancy issues such asmaintenance and repairs.

8. If the receiver will not confirm thathe/she has taken the place of thelandlord, and/or the original landlordcontinues to demand rent or indicatethat the receiver is to be ignored, seekfurther guidance from Threshold,FLAC or other body.

Case Study A:Several months ago, Caller A was notifiedthat a rent receiver had been appointed tocollect her rent in place of her landlordand since then has been paying her rent tothe receiver. Recently, her landlord visitedand stated that he hasn’t been receivingrent from her and that he is owed severalmonths’ rent. This puzzled Caller A, as shehad been paying the receiver. She rang theFLAC information line, where she wasreassured that the landlord is not in aposition to claim rent in this situation.once the receiver takes her rent, she hasmet the obligations as outlined in herlease. However, the receiver should issuea receipt and it is important to keep thatreceipt as proof of payment. once she canproduce the receipt, her landlord cannotpursue her for further rent.

Case Study B:A similar case arose when Caller B’slandlord started putting pressure on himto pay his rent directly to him. In thissituation, the tenant is advised not to paythe rent to the landlord and to notify thereceiver. If the situation escalates intoharassment or threats, the tenant shouldnotify a member of An Garda Síochana,and in some cases the receiver may seek acourt order directed to the landlord tostop him or her interfering with thecollection of the rent.

Case Study C:Another query arose when Caller Ccontacted the FLAC information line toask whether he should address queriesabout repairs on his rented dwelling and ingeneral to the rent receiver or thelandlord. Although the receiver is notlegally obliged to carry out repairs underthe current legislation, tenants arerecommended to contact the receiver andhe/she may, with the bank’s permission,use rent collected to carry out repairs.

Case Study D:Caller D rang FLAC wondering who wasto refund her deposit - the landlord or therent receiver. FLAC advised that, ingeneral, the landlord remains liable toreturn the deposit, as the receiver is notliable to repay a deposit paid to thelandlord. However, tenants are stilladvised to confirm with the receiverwhether or not he or she will take onresponsibility for repaying the deposit, asin some cases he or she may do so.

Case Study E:Caller E rang up to ascertain whether therecently-appointed rent receiver for hisrented accommodation would be able toterminate his lease early. Normally, therent receiver has the same rights as thelandlord, for example, if the receiverwishes to terminate the lease, he or shemust give advance notice, the length ofwhich must meet the standards set out inthe lease and the Residential TenanciesAct. However, FLAC told Caller E thatthere are certain exceptional circum -stances where the bank has additionalpowers to terminate a lease; such aswhere the lease reduces the value of thebank’s security or where the tenant isrequired to pay rent far below marketvalue. Thus callers need to know whetherthey fall into this category if an earlytermination is suggested.

l For queries on rent receivers, you can getinformation for free and in confidence fromFLAC’s telephone information line on 1890350 250.

l You can also download FLAC’s newinformation booklet on Landlord & TenantLaw at: http://bit.ly/LLandT14

l Threshold offers comprehensive onlineinformation athttp://www.threshold.ie/advice/ where youcan also find details of local advice services

Rent receivers: Unclear law means tenantscaught in crossfire between banks and landlords

on 28 May the Government published anew piece of draft legislation which willimpact on many people in Ireland. TheSocial Welfare and Pensions Bill 2014 wasnonetheless given limited debate in theoireachtas. In general, FLAC is veryconcerned that the haste at which suchimportant legal proposals are pushedthrough the houses of the oireachtasmeans there is little time or space foradequate debate and participation, whichwe feel is integral to a well-functioningdemocracy.

The technical nature of the bill makes itdifficult to read but this is exacerbated bythe fact that legislators do not have accessto an updated version of the primary pieceof legislation referenced, the SocialWelfare Consolidation Act 2005. There isa clear need for access to a ConsolidatedAct; that is, one which has all the latestchanges in serial form, rather thanconsisting of references to a series ofprevious versions and other legislationwhich necessitates a time-consuming trawlthrough a host of documents. This couldbe put online through the Department ofSocial Protection’s website. Indeed theTánaiste and Minister for SocialProtection, Joan Burton TD, as stated inDáil debates that she “would broadlyfavour” publishing an “in-house guide onthe various amendments to the SocialWelfare (Consolidation) Act available tothe public”.

one change in the Bill is around FamilyIncome Supplement (FIS). A separatedparent applying for the supplement whodoes not have his or her child(ren)permanently residing with him/her willnow not only have to be maintaining thechild (or children) but also their formerspouse/civil partner in order to be deemedeligible for the payment. FLAC andNorthside Community Law & MediationCentre made a joint submission raisingconcerns about this new element of FISand the disproportionate impact that itcould have on children of separatedfamilies to an adequate income standard.

The habitual residence condition (HRC)which is applied to any person seeking asocial assistance payment and child benefit,is also being amended in the bill. FLAC’s

work has concentrated on the reform andimprovement of its application in practice bythe Department since its introduction in2004. The reference to the “two-year rule”is finally being removed since it was struckdown in a European Court of JusticeJudgment in the Swaddling case in 2007. Thebill does however create new powers ofreview which will allow a Decidingofficer/Designated Person to assesswhether a person still satisfies the condition.The bill mentions a “worker” under the Eulaw definition of such and his or her need tosatisfy the condition after the cessation of“worker” status. FLAC and NCLMC areconcerned as to how this provision will beinterpreted by decision-makers.

Finally, the bill will widen the Depart -ment’s authority to recover over pay -ments, such that it will be able to seekrepayment from lump sums such as

redundancies and other types of compen -sation. We are concerned that in somecases, this may potentially reduce aperson’s income below the basicminimum, exposing his or her to financialhardship or worse. A clear, robust appealsprocedure must be implemented tosafeguard against incorrect or unfairdecisions.

only one of NCLMC’s and FLAC’sconcerns was taken on board, leavingalready vulnerable people even moreexposed to hardship than they werebefore this legislation.



Social Welfare & Pensions Bill may putpeople at risk of destitution

l Read the joint statement fromFLAC and NCLMC: bit.ly/ULcrBK

l The text of the Bill is at: bit.ly/1rmJcmv

Team FLAC

Well done to all in Team FLAC who ran the women’s mini marathon on the June

bank holiday weekend. A big that you to all involved – pictured here are:

Back row L -R: Trina Dzidonu, Mary Guy, Noeline Blackwell, Catherine Hickey,

Yvonne Woods.

Front row L-R: Gillian Kernan, Niamh MacEvilly, Tope osedola, Brigid o’Brien.

A s this article goes to print, weawait the conclusions andrecommendations which the uN

Human Rights Committee will give toIreland. Ireland reported to theCommittee, a group of internationalhuman rights law experts and wasexamined on 14th & 15th July under theunited Nations International Covenant onCivil and Political Rights in Geneva. Irelandratified this covenant in 1989 and later italso adopted two further additions knownas optional protocols.

FLAC was part of a consortium of non-governmental organisations which cametogether to contribute to a report which‘shadowed’ or mirrored the State’s reportto the committee. The group, headed byIrish Council for Civil Liberties (ICCL)published that Shadow Report on theprogress of civil and political rights inSeptember 2013 with an update, mirroringthe State’s update to the Committee,submitted for the Committee’s attentionin June 2014.

The delegation from the Irish Governmentwas led by Minister Frances Fitzgerald andhigh level civil servants from the Depart -ment of Justice; other relevant depart -ments also participated. Many of the non-governmental organisations who hadcontributed to the Shadow Report alsoattended.

The Human Rights Committee waschaired by Sir Nigel Rodley. Thequestioning from the eighteen Committeemembers focused on issues of effectiveremedies for victims of abuse, legalrecognition of different groups in societyincluding Travellers and transgenderedpeople and the status of the human rightsand equality institutions to name a few.

The Committee raised questions on theincorporation of the International Coven -ant into the domestic legal order and thepossibility of the Irish Human Rights &Equality Commission invoking suchtreaties if necessary. The State’s consistentres ponse throughout the previous exam -ina tions has been that civil and politicalrights are already adequately protectedunder the Irish Constitution and Irish law.

The protection of women’s health was afeature of the Committee’s questioning

around Ireland’s new abortion legislation.The Committee welcomed the limitedprogress on abortion but indicated that itwould be looking for further change tobring Ireland into full compliance with theInternational Covenant. The Committeerepeatedly returned to health and welfareissues for survivors of symphysiotomy andto their right to redress and to the needfor accountability of this horrific medicalpractice for the victims of symphysiotomyand not just the establishment of acompensation fund.

one of the issues that particularlyconcerned FLAC, where we had madedetailed contributions to the ShadowReport, was the issue of the legal recogni -tion of transgender people in Ireland.Committee members questioned the slowprogress of the State towards legalrecognition. The State explained that theyhad set up a consultation process and aworking group and had needed toconsider its conclusions and recom -mendations and also elaborated at theCommittee’s request on how it isproposed to recognise transgender peopleunder 18 years of age. Apart fromconcerns about delay, the Committee alsoraised questions about the possibility of

criminal responsibility attaching to trans -gender people simply by virtue of theiridentity .

FLAC also remains concerned that theState is failing to observe internationalhuman rights law when it comes to thosewho are unable to pay fines because ofpoverty. This issue was included in theShadow Report and raised by the Com -mittee. The State response referred to theintroduction of the Fine Payments andRecovery legislation which is expectedlater this year to deal with this short -coming. Meanwhile the deficit remains.

The examination proved to be a successfulopportunity to objectively assess Ireland’scompliance with international law on civiland political rights which it has committedto respect, protect and fulfil. There isclearly much remaining to be done but itwas heartening to see that the State tookthe examination seriously, as indicated bythe presence of the Minister, and equallyheartening that civil society was soengaged in the process leading to a fruitfuldebate. The Human Rights Committee willpublish concluding observation andrecommendations on 24th July.



Ireland’s examination under ICCPR

Work progresses on Economic, Social andCultural Rights Shadow Report

FLAC is coordinating a shadowreport to reflect evidence from civilsociety on how economic, socialand cultural rights – like housing,health, education, social security,employ ment and cultural life – arebeing respected in Ireland under theInternational Covenant on Econ -omic, Social and Cultural Rights.

Public consultations have takenplace in Galway, Cork and Dublinwhich resulted in a wide range ofinputs. In Dublin there were twofurther specialised sessions, on theright to housing and the right tosocial security.

The research team has received avast amount of information fromorganisations and individualsworking on the ground on thesefundamental human rights issues.We are hugely grateful foreveryone’s input to date.

A first draft of the report will beavailable shortly to all those thatinputted already into the reportand a final consultation is plannedbefore the end of August to givefeedback on the draft version of theShadow Report.

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Flac news summer for web

Documents

Transcript of Flac news summer for web