The Supreme Court has allowed the appeal against the residence test for legal aid, overturning the Court of Appeal judgment in favour of the Home Office. The basis for the Supreme Court’s decision is that the Lord Chancellor, Chris Grayling at that time, did not have the legal power to introduce the residence test. A second issue was to be argued regarding whether the test was unjustifiably discriminatory and so in breach of common law and the Human Rights Act 1998 but the Court did not hear argument on that question.
The residence test limited legal aid to children under 12 months old and those who have been lawfully residence for 12 months continuously with no absences in excess of 30 days.
In the High Court, Moses J gave some examples of those who are affected by the test:
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. A concrete example given by Coram Children’s Legal Centre in its response to the consultation paper is the case of L, who had recently arrived in the UK for the purposes of refugee family reunion with her husband, and who would be unable to access legal advice in relation to the failure of the local authority to assess the needs of her autistic eight year old son because she had only been in the UK for three months.
Ms Nicola Mackintosh QC of Mackintosh Law gives the example of 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”. 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:
“We were told both that he did not have a passport and (by his family) that he did have one but that it had been lost. P did not know if he did have a passport. It was also not possible to confirm that he had been lawfully in the UK for a continuous period of 12 months at some point in the past …”
Ms Mackintosh gives other examples of incapacitated individuals who either would not have passed the residence test, or for whom it would have been impossible to prove that they did, and whose welfare would have continued to be seriously jeopardised in the absence of proceedings.
The Supreme Court decision leaves open the possibility that the Government could in future alter the primary legislation in order to grant the Lord Chancellor the necessary powers to introduce a residence test.
You can read the notice on the Supreme Court website here. Full judgment is to follow. You can read about the previous judgments in the courts below here: