The Irrelevance of Residence: The Unlawful ‘Residence Test’ for Legal Aid
Daniel Cashman 16th July 2014

In R (Public Law Project) v Secretary of State for Justice, the Administrative Court held that the Government’s proposed residence test for legal aid was ultra vires and discriminatory. The judgment serves as a welcome criticism of the sweeping justifications adopted by the Government in the name of austerity.

The Legal Aid, Sentencing and Punishment of Offenders Act 2012 (‘LASPO’)brought swingeing cuts to civil legal aid from April 2013. Soon after it came into force, the Government proposed a raft of further reforms in Transforming Legal Aid. Among the proposals for reform was a residence test, which would restrict access to legal aid for persons with less than 12 months’ lawful residence. The Government proposed to implement this test by secondary legislation in the LASPO (Amendment of Schedule 1) Order 2014. The Public Law Project brought judicial review proceedings to challenge the legality of the Government’s decision to propose the residence test.

First, it was argued that the proposed legislation was ultra vires. Under LASPO s.9(1)(a), legal aid is to be provided in the cases identified in Part 1 of Schedule 1, which have been identified as the situations in greatest need of public funding. Importantly, they are not cases in respect of which the United Kingdom is obliged to provide legal assistance, either under the Human Rights Act or the common law. Rather, legal aid in such ‘exceptional cases’ is (supposedly) catered for by s.10.

The Lord Chancellor sought to argue that LASPO conferred power to introduce the residence test in secondary legislation by virtue of ss 9(2) and 41(2)(b) LASPO, as these provisions grant a power to restrict legal aid by reference to a class of individuals identified by residence. However, this argument was given short shrift by Moses LJ, with whom Collins and Jay JJ agreed. Section 9 LASPO serves to identify those individuals who have the greatest need for legal aid (at [37]); so, the powers under ss 9 and 41 must serve and promote that object of the statute. A residence test falls short: in a powerful statement, his Lordship held that ‘no one can pretend that removing legal aid from non-residents is a means of targeting legal aid at those most in need’ (at [42]). As a result, the Court concluded that the proposed secondary legislation was ultra vires, as it sought to extend the scope and purpose of the statute.

Second, it was argued that the proposed amendment was discriminatory. The Government sought to argue that the discrimination was lawful because legal aid, in those cases where the law does not impose a duty to provide it, is no more than a form of welfare benefit. It is well-established that discriminatory selection in relation to the distribution of benefits is a matter for the judgment of Parliament and the Government. Given that the residence test did not apply to s. 10 LASPO cases, the Government considered that it was permissible to select which individuals could benefit from legal aid.

However, the Court also convincingly rejected this argument. Moses LJ held that legal aid differs from welfare benefits on the facts as ‘the Government has already reached the conclusion that certain categories of case demonstrate such a high priority of need as to merit litigation supported by taxpayers’ subsidy’ (at [71]). The correct question for the court was not about the denial of legal aid, but about discrimination in cases of equal need between those who are eligible and those who are not. As a result, the proposed residence test discriminated unlawfully.

The outcome of this case is no surprise – the residence test had already been widely criticised as unlawful. Nevertheless, the judgment serves as a stark reminder to the Government that its austerity measures must only be adopted within the bounds of the law. Austerity risks becoming a blanket justification for the Government’s removal of benefits and legal aid; yet, the High Court has shown that the mere identification of limited public resources cannot legitimate an unlawful discriminatory approach.

However, the residence test may survive. The judicial review was merely of the Government’s decision to introduce the proposed secondary legislation, and the Court has not yet decided on the relief to be awarded; the Government has also indicated its intention to appeal.  The House of Lords will consider the proposed residence test on 21 July 2014 – it is only to be hoped that the full force of the Administrative Court’s reasoning will see the amendment rejected.

Author profile

Daniel Cashman is a barrister, who completed the BA and BCL at the University of Oxford. He was a founding co-chair of Oxford Legal Assistance and currently sits on the Executive Committee of Oxford Pro Bono Publico.

Citations

Daniel Cashman, “The Irrelevance of Residence: The Unlawful ‘Residence Test’ for Legal Aid,” (OxHRH Blog, 16 July 2014) <http://humanrights.dev3.oneltd.eu/?p=12215> [date of access].

Comments

  1. Daniel Cashman says:

    The Government has published its response to the JCHR’s criticisms of the residence test: https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/350592/cm8936-government-response-to-jchr-legal-aid-children-and-residence.pdf
    With regard to the High Court’s judgment, the Government states: ‘The Government is appealing this judgement and exploring options for proceeding with the residence test’ (page 3).

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