Senior judges split on legality of legal aid residence test

On Wednesday, 25 November 2015, a three-judge Court of Appeal held that the government’s controversial ‘residence test’ restricting eligibility to most forms of civil legal aid is lawful. Its ruling reverses last year’s judgment by a specially-convened three-judge Divisional Court that the Lord Chancellor had exceeded his powers and discriminated in a way that could not be justified when proposing the test. 

As well as reaching diametrically opposed decisions on both legal issues in the case, the two courts took very different approaches to the evidence they were presented with. In its judgment, the Divisional Court analysed dozens of witness statements about the anticipated impact of the test, including  those from Jean Charles de Menezes’ family lawyers,  a solicitor assisting a woman with learning disabilities who had been imprisoned in a kennel by her husband’s family and another acting for children left destitute  as a result of local authority disputes over responsibility. All of these were identified as people likely to be denied advice and representation in court under the new test, something which the Divisional Court believed Parliament could never have contemplated when passing  legislation intended to target legal aid at those who need it most. 

The Court of Appeal judgment does not discuss this or other evidence in the case. Instead, its focus is on two narrow legal issues. First, the Court finds that  ministers may use secondary legislation to  withhold legal aid from particular groups of people on cost-saving grounds alone, regardless of need. Secondly, it holds that legal aid is, in effect, a welfare benefit and so, withholding it on  discriminatory grounds from some of those  who need it  just as much as others, is justifiable unless ‘manifestly without  reasonable foundation’. The Court considered the test could be justified.

The legal challenge was brought by the legal charity, the Public Law Project.  Its position was supported by the statutory body with special responsibility for children’s welfare, the Office of the Children’s Commissioner.

The Public Law Project hopes to ask the Supreme Court to give urgent consideration to an appeal against the Court of Appeal’s decision before the test is brought into effect.  The Project is represented by John Halford of Bindmans LLP. He said today:

'The outcome of this appeal has exposed a fundamental difference in views between members of the judiciary on an issue which all accept is of real importance:  when access to justice can only be secured with legal aid, can it be withheld from those who need it most but are not, in the words of the Lord Chancellor’s explanation to Parliament, “our people” because they live abroad or have come here recently? If so, the idea of equality before the law becomes quite meaningless. 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.'