Residence test challenge fails

Legal aid lawyers are considering their options after an unfavourable Court of Appeal ruling on the civil legal aid residence test.

The court held that the residence test, which required recipients of legal aid to have been resident in the UK for at least 12 months, is lawful, in Public Law Project v Lord Chancellor [2015] EWCA Civ 1193.

It found that ministers may use statutory instrument to withhold legal aid from particular groups of people on cost-saving grounds alone, regardless of need, and that legal aid can be treated as a welfare benefit so that withholding it on discriminatory grounds is justifiable unless “manifestly without reasonable foundation”.

The ruling reverses a judgment last year by the Divisional Court that the Lord Chancellor had exceeded his powers and that the test was unjustifiably discriminatory.

The Public Law Project (PLP), which brought the legal challenge, says it will now ask the Supreme Court to give urgent consideration to an appeal before the test is brought into effect.

Exceptions to the residence test were available in cases involving children and vulnerable adults, access to welfare benefits, domestic violence, forced marriage, clinical negligence, judicial review and in certain other categories.

John Halford, partner at Bindmans, who acted for the PLP, says: “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.”

Resolution chair Jo Edwards says: “Resolution is particularly concerned that family mediation will be subject to the test, which may further disadvantage vulnerable people going through a divorce or separation. We believe the cost of administering the test will outweigh any modest savings made.”