It’s getting harder for Kiwis to access legal aid, new research suggests.
With an average hourly charge-out rate of about $300, private lawyers are often out of reach for New Zealanders needing legal assistance, according to research from the University of Otago.
People expect that legal aid will be there to fill the gap, but the University of Otago Legal Issues Centre report, released today, has found barriers to accessing it are often too great to overcome.
The number of lawyers registered to provide civil legal aid is on the decline in New Zealand; dropping 54 per cent between 2011 and 2016, leaving just 150 registered providers in Auckland and 20 in Otago. A key finding of the report was that not all of those registered to provide civil legal aid will actually do so. In fact, one third of those currently registered did not provide civil legal aid to clients in 2017.
Centre Director Dr Bridgette Toy-Cronin and Assistant Research Fellow Kayla Stewart conducted an audit of free and low-cost civil* legal services in Auckland and Otago.
“We found it is very hard to qualify for legal aid and if you do qualify, it is difficult to find a lawyer who can take the case,” Dr Toy-Cronin says.
The key barriers to accessing legal aid are:
- The income eligibility criteria is very low, currently set at $23,326.00 p.a. for an individual with no dependents.
- Small businesses cannot access it.
- It is granted as a loan with the burden of a user charge, interim repayments, interest, and sometimes a security taken over assets.
- Legal aid lawyers are not evenly distributed geographically, so accessibility may depend on where you live.
- There is a very small pool of legal aid lawyers who can provide assistance in specialised civil areas, for example intellectual property.
For individuals who are not eligible for legal aid, or are reluctant to use the scheme, a significant gap in legal services exists.
“A lawyer’s hourly charge-out is an average of around $300 so it is unaffordable for most people to pay a lawyer, particularly when the average wage is about $960 per week,” Dr Toy-Cronin says.
Community-based services have emerged over time in an attempt to bridge this gap.
Seven free community-based legal organisations were identified in Auckland, and four in Otago. However, the majority of these organisations only offered information and advice, with very limited free or low-cost representation services.
“People are therefore often left with the choice of either abandoning their claim or defence or representing themselves. The position of small business owners is worse as a company can’t get legal aid, only an individual, and most community providers won’t provide advice to companies either.”
The researchers believe a central hub needs to be created to provide information to the public about all the available sources of legal information, advice, and representation at free or low cost.
“Even finding out about these services is a real challenge. A hub would better highlight the gaps in services so that anyone setting up a new service or looking to provide information wasn’t creating an overlap with existing outlets,” she says.
In the next phase of their study the researchers will explore why some legal aid providers no longer offer civil legal aid services – or are only doing so on a very limited basis – and the scope, availability, and accessibility of pro bono and low cost legal services.
“We want to look at how private lawyers might be plugging the legal aid gap. Lawyers often refer to doing pro bono work or offering fee arrangements so we are going to do a national survey to analyse the extent and nature of these services to get a better picture of what is available.”
*Civil cases include a large range of disputes for example disputes over debt, contracts, guarantees, leases, insurance, tax, estates, intellectual property, and claims in defamation. Civil, in legal aid categorisation, includes all cases that are not criminal, family, mental health, refugee and protected persons, Māori Land Court, Māori Appellate Court, and Waitangi Tribunal cases.