People receiving financial assistance may be precluded from receiving legal aid, a practice that puts an individual’s access to justice within the legal system in jeopardy, according to local attorneys.

While the Legal Aid Act does not set out eligibility requirements, a spokesman for the Legal Aid Office yesterday confirmed that “all forms of income” are taken into account when determining a person’s financial ability to adequately defend themselves in court, including income derived from financial assistance.

“I think it’s absurd,” said defence counsel Rick Woolridge, “because if you’re on Financial Assistance — knowing how that system works — you only get the bare minimum in any event”.

Mr Woolridge said that clients have been coming to him after being refused legal aid “on the basis that they get too much money from financial assistance”.

Another defence attorney, Saul Dismont, echoed Mr Woolridge’s concern, saying: “We’ve seen an increasing pattern of clients telling us that they’re being refused legal aid because their financial assistance is being regarded as income.”

Responding to queries by this newspaper, a spokesman for the Legal Aid Office said: “All forms of income — however derived — are contemplated under the Legal Aid Act 1980. This will include Financial Assistance. “Persons in receipt of Financial Assistance are in the same position as other applicants in terms of income calculation since they get the benefit of deductions in respect of rent, dependent members of their household and child support that they may be paying.”

Legal aid is provided to those who are in need of legal assistance but cannot afford it. The problem lies in how the Legal Aid Office determines what constitutes a person’s ‘need’, said Mr Woolridge.

“Your requirements for financial legal assistance is ‘needs tested’ based on household income.

“What it is supposed to be based on is disposable household income, but they seem to be basing it on total financial income of the household itself,” he said.

“It’s something that needs to be addressed,” agreed Mr Dismont. “If you live in a house of people receiving financial assistance they’re regarding as income, you may be extremely poor, but at present the practice is to say, ‘no, you can’t get legal aid. You are too poor for legal aid’.”

Mr Dismont also agreed that the best way to address the problem would be to “needs test” based on disposable income. “I think if you’re going to consider anything, disposable income would be the fairest way of working it out. Imagine you have someone paying an amount of money in child benefit payments, maintenance payments, and they really aren’t making much money at all — barely breaking even in fact. [If] there’s somebody else in the house who may be making more money, who may not be contributing to anything that you do, it seems rather odd to hold that against them.”

The practice of denying legal aid to those on financial assistance puts Bermuda’s judicial system on a slippery slope toward violating constitutional rights, according to Mr Woolridge.

“The social contract requires that for my vote, you will provide a society in which I can thrive,” said Mr Woolridge. “You will provide everything I am entitled to under the constitution, and access to justice when my rights are infringed. [Preventing] access to justice is a slope that we’re now sliding on.”

Mr Woolridge added that in some cases, people are even being told which lawyers then can and cannot choose to represent them.

“What this is erasing is the access to justice within the legal system. It is erasing one’s right to defend one’s self, and under the constitution you are also entitled to the counsel of your choice.

“On some occasions I know of people who have gone to Legal Aid and elected the counsel and been told, ‘No, you can’t have him, you’ve got to have her’, or vice versa.”

Meanwhile, the Centre for Justice, who said they were not aware of such practices as the Legal Aid Act does not set out eligibility requirements, highlighted further “discriminatory” problems with Act regarding how it applies to non-Bermudians.

“Non-Bermudians are not eligible for legal aid in civil proceedings unless they relate to immigration, human rights challenges against the Government or family law proceedings relating to custody, access, adoption and child support,” said Venous Memari, Managing Director at the Centre for Justice.

“This provision is not only discriminatory, but it is fundamentally unfair because non-Bermudian workers who would otherwise be eligible for legal aid on the basis of their income are denied legal aid.”

Non-Bermudians who may suffer injuries after a road accident but are unable to afford legal representation, said Ms Memari, are “out of luck” as legal aid is only available to Bermudians.

“It is fundamentally unfair to expect everyone to carry an equal obligation towards the state’s coffers which are used for social services, but not be able to realise equal benefits,” added Ms Memari.

“The purpose of legal aid is to ensure access to justice. If you can’t afford to pursue your rights, then it’s just as well that you don’t have such rights.”