Tag Archives: residence test

by | April 19, 2016 · 7:22 am

Supreme Court finds residence test unlawful

The Supreme Court began hearing the residence test appeal on Monday. Most unusually, at the end of day one of a two day hearing, the Court gave its decision – that the test is unlawful because it is outside the powers granted to the Lord Chancellor by LASPO. It’s not yet clear whether the second day will go ahead to consider whether it is also discriminatory. The Court will give reasons in due course.

This is a very welcome result, and our congratulations to the Public Law Project and its representatives for bringing the case. As we said when the draft regulations were first published the test is not only directly and deliberately discriminatory, it would also have the practical effect of barring access to legal aid for many who would be eligible but unable to prove it.

But it’s important to remember that this doesn’t necessarily mean the end of the residence test. There’s clear political will to introduce it, with the Prime Minister himself reportedly committed to it as part of the government’s response to the Iraq armed forces cases. Today’s hearing showed that the test can’t be implemented via statutory instrument using the LASPO powers. But it could still be brought in by primary legislation – and that would be harder still to challenge.

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by | March 10, 2016 · 6:55 pm

Residence test hearing expedited

Readers of this blog will know what a serious threat the residence test would be to access to justice. We last covered developments here.

We understand that Public Law Project’s challenge to the residence test has now been expedited by the Supreme Court and will be heard by a panel of seven justices on the 18th and 19th of April 2016. PLP is being represented by Bindmans, who will only be paid if the case is successful. Should they lose, PLP’s liability for the Lord Chancellor’s costs have been capped at £15,000.

PLP is continuing to raise money to pay the Lord Chancellor’s costs if ordered to do so. You can find out about how to donate here.

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by | February 26, 2016 · 1:40 pm

Residence test to go to Supreme Court

The Supreme Court announced today that it has given permission to appeal in the case of R (on the application of The Public Law Project) v The Lord Chancellor (our report of the Court of Appeal decision here).

This is the first LASPO case to get this far, and so will be of considerable interest. It may give the Court the opportunity to resolve the various views of the statutory purpose of LASPO, an issue in many of the High Court and Court of Appeal cases, and one we discussed here.

The Lord Chancellor hasn’t yet laid regulations to implement the residence test, though it was reported that the Prime Minister wanted it done by the summer. It is to be hoped that that won’t now happen, pending the Supreme Court’s decision.

 

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by | January 20, 2016 · 8:57 pm

Of residence, reviews and reverses

There was a series of press reports at the weekend, all setting out the government’s aim to introduce the civil legal aid residence test by the summer. This follows the Lord Chancellor’s win on its legality in the Court of Appeal, and is said to be being backed by the Prime Minister himself, in reaction to recent controversy about claims against British forces arising out of Iraq and other conflicts.

In a debate in Parliament this week the legal aid minister confirmed that the government does indeed intend to introduce the residence test. The LAA has told the representative bodies that it will come in by the summer. There won’t be a formal consultation on the draft regulations, but there is to be some consideration of how it will operate in practice. If the test has to be introduced at all, it is to be hoped that the burdensome checks proposed for all applicants for civil legal aid will have reduced from the last time the test was proposed.

Meanwhile, Labour’s Access to Justice Commission met for the first time this week as part of its attempt to devise a new legal aid policy. There’s an interesting blog from one of the members of the commission, the former Court of Appeal judge Sir Henry Brooke.

Finally, despite being forced to concede that it wrongly marked at least one bid, the LAA seems determined – or intends to appear so publicly – to press ahead with two tier criminal contracts. But in view of recent rumours that it might be about to back down, the Law Society has written to the minister seeking clarification.

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by | November 27, 2015 · 5:47 pm

Lord Chancellor wins appeal over residence test

In Public Law Project v The Lord Chancellor & Anor [2015] EWCA Civ 1193, the Court of Appeal reversed the decision of the High Court that the proposed residence test for civil legal aid would be unlawful. It found that such a test was within the Lord Chancellor’s powers and not unjustifiably discriminatory.

In a short and much narrower judgment than that of the High Court (which considered in detail the practical difficulties of access to legal aid the test would create), Laws LJ (with whom Kitchin and Christopher Clarke LJJ agreed) confined himself to considering whether the residence test was ultra vires LASPO, and whether its effects amounted to unlawful discrimination.

Laws LJ held that Part 1 of Schedule 1 of LASPO lists categories of law where the need for legal aid is pressing. But that does not mean that it is only open to the Lord Chancellor to restrict access to legal aid on the basis of lesser need. LASPO’s purpose is also to restrict legal aid on costs grounds, and it is open to the Lord Chancellor to remove access to the scheme on that basis. The objective of saving funds and making legal aid work more efficiently are objectives of LASPO. The residence test is within the scope of such a strategy, and within the scope of the powers permitted to the Lord Chancellor. s9(2)(b) read with s41(2)(b) of LASPO permits the Lord Chancellor to omit services for classes of individuals, and that is what the residence test does. It is not outside the powers granted by the Act.

On the issue of discrimination, it was common ground that the test is discriminatory; the question is whether it is justified. The saving of public funds is a legitimate aim, and the test is a proportionate means of achieving it. There is a distinction to be drawn between the duty of the State to ensure fair and impartial justice and a duty to fund legal representation. There is a wide discretion to decide what litigation is to be supported by public money, which is essentially a political question, and the restriction on it due to the residence test is not manifestly without reasonable foundation. Any requirement of European or human rights law for access to legal aid is met by exceptional funding under s10 LASPO.

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The Public Law Project’s solicitors, Bindmans LLP, have issued a statement regretting the ignoring of evidence of the practical difficulties the test would cause. They will seek leave to appeal to the Supreme Court.

It is slightly strange that Laws LJ focussed on the statutory purpose of LASPO as being in part about controlling and reducing the cost of the scheme, and how the residence test was a lawful part of that strategy. Similarly, on discrimination, he described the legitimate aim sought as being the saving of costs.

But the residence test, according to the original consultation and impact assessment, was never about cost. It was projected to save very little. The original justification for the test – scarcely touched on by the Court of Appeal – was public confidence in the operation of the legal aid scheme. Moses LJ, in the High Court, described that as amounting to “little more than reliance on public prejudice”. Laws LJ disagreed, considering it possible for reasonable people to disagree about the merits of the test. But he didn’t address at all whether that was a legitimate aim, whether the test was a proportionate means of achieving it, or whether it fell within the statutory purpose of LASPO.

Unless the Supreme Court is persuaded to deal with any appeal quickly, the Lord Chancellor now has the power to introduce a residence test. Having the power is not, of course, the same as exercising it. The new Lord Chancellor has struck a noticeably more thoughtful and liberal tone than his predecessor. It is not too late for him to consider whether the many injustices that would result from the residence test – for those caught by it, and for those not caught who can’t prove entitlement – require it to be added to the lengthening list of Grayling measures quietly abandoned.

 

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by | July 1, 2014 · 5:30 pm

More on the residence test

There was a debate in Parliament on the residence test this morning. This comes as the LAA publish draft guidance on the operation of the test, and training modules for practitioners, ahead of the implementation of the test on 22nd August. The draft regulations and guidance are linked to from our Resources page.

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by | June 17, 2014 · 8:44 pm

Can you prove it?

The draft residence test regulations have been published – and with them, a policy statement on what allapplicants for civil legal aid (apart from those in exempt categories) will be required to prove from when the test is implemented, in August – links to both also on our Resources page.

Applicants will need to provide evidence of both current lawful residence, and of 12 months continuous residence. Those claiming to be in an exempt category will need to provide evidence of that. There will be limited exceptions where it is impracticable to do so, which seem to be along similar lines to the current ones for evidence of means. Otherwise, proof will be required in all cases.

Evidence of right to lawful residence – passport or ID card showing that the applicant is a national of the UK, EEA or Switzerland; residence permit for one of those countries; birth or adoption certificate from the UK, Ireland, Channel Islands or Isle of Man; certificate of naturalisation as a British citizen; immigration status document or leave to remain letter

Evidence of current residence includes – bank statement; council tax bill; utility bill; benefits letter; health care record; letter from prison confirming current detention; school attendance record; tenancy agreement; mortgage statement; letter from social housing provider; court summons / order / warrant; letter from care home

Evidence of continuous residence – 12 months bank statements; 12 months DWP statements; 12 months rent or mortgage statements or letter from landlord; letter from prison confirming 12 months detention; letter confirming 12 months attendance at school; 12 months wage slips; tax return; arrival and departure travel documents; letter from training provider

Evidence of exemption – asylum registration card; military ID card; marriage / birth / etc certificate showing relationship to member of forces; birth or adoption certificate if under 1 year old

There will be amendments to the Procedure regs in due course with full details, alongside further guidance – this statement just gives an overview of what is intended.

All applicants for civil legal aid, apart from exempt persons or cases to which the test does not apply, will need to provide this evidence. Practitioners who struggle now to obtain evidence of means will know h0w much harder it is likely to be to get 12 months bank statements than 3 – and that before a passport or birth certificate is added. Practitioners working with victims of domestic violence will know how few clients return when sent away to get the prescribed evidence, and how long it takes. If experience of domestic violence cases is any guide, obtaining it will be unpaid work – and will be a very effective restriction on access to justice even in the case of those who pass the test.

The Public Law Project JR of the test is ongoing; we understand judgement is expected relatively soon.

 

 

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