Grayling’s Legal Aid Residence Test Defeated – Judgment handed down in The Queen on the Application of the Public Law Project v The Secretary of State for Justice EWHC 2365 (Admin)
On 15th July judgment was handed down by the three-judge Divisional on the Lord Chancellor’s decision to alter civil legal aid eligibility rules by introducing a ‘residence test’ The test would withhold legal aid from recent, lawful migrants and irregular migrants including children born here many years ago. British nationals born and living abroad would fail the test, as would those unable to prove past residence includingwomen fleeing domestic violence, pre-school age children and the homeless. Despite the Parliamentary Joint Committees on Statutory Instruments and Human Rights both expressing concerns over its legality, the controversial test was approved by the House of Commons last week. 32 leading NGOs have since issued a joint briefing calling on the House of Lords to reject the test using a ‘fatal motion’ on 21 July.
In a 40-page unanimous judgment, the Court finds that the test is unlawful, that the Lord Chancellor exceeded his statutory powers when devising it and that it would discriminate against ‘foreigners’ without justification.
Giving the Court’s lead judgment, Lord Justice Moses said at paragraphs 45 and 50:
“…the Lord Chancellor now asserts a power to introduce secondary legislation which excludes, from those adjudged to have the highest priority need, those whose need is just as great, but whose connection with the United Kingdom is weaker.
… the instrument is ultra vires and unlawful. I conclude that LASPO does not permit such a criterion to be introduced by secondary legislation. It extends the scope and purpose of the statute and is, accordingly, outwith the power conferred ….”
adding at paragraph 60:
“It is and was beyond question that the introduction of such a test was discriminatory… Indeed, that is its declared purpose.”
At paragraphs 82 and 83 the Court held:
“Within the system provided in Schedule 1 of LASPO, the United Kingdom is not permitted to discriminate against non-residents on the grounds that to do so might save costs…
Certainly it is not possible to justify such discrimination in an area where all are equally subject to the law, resident or not, and equally entitled to its protection, resident or not. In my judgment, a residence test cannot be justified in relation to the enforcement of domestic law or the protection afforded by domestic law, which is applicable to all equally, provided they are within its jurisdiction. In the context of a discriminatory provision relating to legal assistance, invoking public confidence amounts to little more than reliance on public prejudice.”
At paragraphs 27, 29, 30 and 31, the judgment highlights examples from the hundreds of pages of evidence filed in the case giving real-life examples of people who would be denied legal aid in future:
“It is not difficult to identify those on whom the application of the residence test would have a direct impact. Families of recently arrived children with special educational needs, whose access to education depends on proper provision being made to meet their additional needs, will be unable to access legal help and advice….
…individuals who lack mental capacity and are protected persons for litigation purposes, and therefore unable to litigate without a litigation friend, but who cannot meet the residence test, will be unable to access legal advice and representation… [for example] ‘P’ a severely learning disabled adult, who had been ‘forced to live in a dog kennel outside the house, had been beaten regularly by his brother and mother, and starved over an extensive period of time’…
… the residence test will exclude from access to legal aid individuals resident abroad who have been subject to serious abuses at the hands of UK forces.”
Following the judgment the Minister for Justice Chris Grayling has confirmed that the test, which was expected to come into force next month, will now no longer be introduced. However the Government have applied for permission to appeal and an appeal to the Court of Appeal is widely expected over the course of the coming few weeks and months.
To discuss the judgment, its implications and for advice on any prospective Community Care or Public Law cases please feel free to contact the Public Law Team by email at email@example.com or telephone: 0115 9503231