Court of Appeal reverses decision on legal aid residence test
The Court of Appeal has found in favour of the government on the controversial legal aid residence test ( EWCA Civ 1193, 25 November 2015). The judgment reverses the decision of the Administrative Court ( EWHC 2365 (Admin), 15 July 2014), which had found against the lord chancellor in a challenge brought by the Public Law Project.
Bindmans, which represented PLP in the appeal, observed that the two courts reached ‘diametrically opposed decisions’ on the legal issues and took different approaches to the evidence presented. The firm’s John Halford (pictured), who represented PLP in the case, commented: ‘There is a compelling case for the Supreme Court to give a definitive ruling on who is right. We will be urgently seeking permission to present the case to that court.’
The residence test was introduced by the previous lord chancellor, Chris Grayling, as an attempt to prevent people resident abroad or recent arrivals in the country from claiming legal aid. The Administrative Court had drawn on common law principles in its judgment, finding that, as legal aid was essential to ensure equality before the law, it could not be restricted on grounds of nationality or place of residence.
The residence test regulations are not yet in force, as they are subject to further parliamentary procedures. If leave is granted, the hearing in the Supreme Court should take place before the residence test takes effect.
The Administrative Court judges found the lord chancellor had radically overstepped the limits of his powers and was trying to create a discriminatory legal system that was incompatible with equality under the law. They also upheld a complaint on a second ground that it would not be legitimate to discriminate against non-residents solely on the grounds of saving money.
Handing down the earlier ruling, Lord Justice Moses had said: ‘The Ministry of Justice described LASPO as “targeting legal aid at the most serious cases which have sufficient priority to justify the use of public funds”. No one can pretend that removing legal aid from non-residents is a means of targeting legal aid at those most in need.’
He added: ‘Within the system provided by LASPO, the UK is not permitted to discriminate against non-residents on the grounds that to do so might save costs.’
The earlier case had been supported by an exceptional bundle of 596 pages of material, including witness statements from a wide range of NGOs, representative bodies, private firms and individuals.
The July 2014 judgment quoted an example provided by solicitor Nicola Mackintosh of one of her clients, 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”. With the benefit of legal aid and the involvement of the Official Solicitor, proceedings in the Court of Protection resulted in a determination that it was in P’s best interests to live separately from his family in a small group home with his friends and peers and 24-hour care. Yet, as Ms Mackintosh explains it would have been impossible to ascertain whether P met the residence test.’ Support for migrants: update, page 35.