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Radical legal aid changes unlawful

Radical changes to who is entitled to legal aid in civil cases have been declared unlawful by the High Court.

The Lord Chancellor's proposals to restrict aid through a "residence test" were shot down by three senior judges.

Lord Justice Moses, sitting in London, said: "I conclude that residence is not a lawful ground for discriminating between those who would otherwise be legible for legal assistance by virtue of Schedule 1 of the Legal Aid, Sentencing and Punishment of Offenders Act (LASPO)".

Mr Justice Collins and Mr Justice Jay unanimously agreed.

Later Jo Hickman of the Public Law Project (PLP), which led the legal battle against the Lord Chancellor, said: "We are heartened by this judgment, which embodies and articulates the finest traditions of our justice system and provides a timely illustration of the importance of judicial review as a check on unlawful executive action."

The PLP says the residence test would withhold legal aid from recent, lawful migrants and irregular migrants including children born in the UK many years ago.

British nationals born and living abroad would fail the test, says the PLP, "as would those unable to prove past residence including women fleeing domestic violence, pre-school age children and the homeless".

John Halford of Bindmans, who acted for PLP, said today: "Using powers that were never his to exercise, the Lord Chancellor has attempted to refashion the legal aid scheme into an instrument of discrimination so that many of the cases Parliament itself identified as most worthy of support could never be taken.

"The court's judgment on that attempt is emphatic: it is simply unacceptable in a country where all are equal in the eyes of the law.

"Legal aid is, and must remain, the means to safeguard equality in our courts, regardless of people's origins, nationality or place of residence."

In the lead ruling Lord Justice Moses declared the Lord Chancellor had acted outside his powers and declared LASPO did not permit the introduction of the residence test through secondary legislation.

The Lord Chancellor was unlawfully seeking to "extend the scope and purpose of the statute", said the judge.

He was also asserting "a power to introduce secondary legislation which excludes, from those adjudged to have the highest priority need, those whose need is just as great, but whose connection with the United Kingdom is weaker".

The judge said it was not difficult "to identify those on whom the application of the residence test would have a direct impact".

Coram Children's Legal Centre had provided as an example the case of L, who recently came to the UK to be reunited with her husband.

She would be unable to access legal advice in relation to the failure of the local housing authority to assess the needs of her autistic eight-year-old son because she had only been in the UK for three months.

Nicola Mackintosh QC of Mackintosh Law gave the example of P, an adult with severe learning disabilities who had been "forced to live in a dog kennel" outside the family house.

He had been beaten regularly by his brother and mother, and starved over an extensive period of time.

The judge said: "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."

The judge said the Ministry of Justice (MoJ) described LASPO, before the introduction of the residence test, as "targeting legal aid at the most serious cases which have sufficient priority to justify the use of public funds".

Part 1 of Schedule 1 of LASPO 2012 identified cases most in need of public funding for which the UK was not obliged to provide legal assistance under human rights legislation or the common law.

The Lord Chancellor was seeking to apply the residency test under secondary legislation in the form of a 2014 amendment to LASPO on the grounds of saving costs and the need to "command public confidence" in the legal aid system.

The judge said the real question was whether, once the United Kingdom chose to provide legal assistance in cases where it was under no duty to do so, it could refuse such assistance and hamper non-resident claimants seeking to vindicate domestic rights which public authorities were under a domestic legal obligation to secure.

He ruled Schedule 1 of LASPO did not permit discrimination against non-residents "on the grounds that to do so might save costs".

And he added: "In the context of a discriminatory provision relating to legal assistance, invoking public confidence amounts to little more than reliance on public prejudice".

Refugee Council policy manager Judith Dennis said: "This ruling is a triumph for justice and sends an important message to politicians: discriminating against people in order to save money is unacceptable and against the law."

The Children's Commissioner for England, Dr Maggie Atkinson, who outlined to the court the likely impact of the residence test, welcomed the ruling.

She said: "We decided to intervene in this case because we were seriously concerned about the effect of the residence test on vulnerable children and young people who could not access legal advice or support to secure their rights simply because they could not prove they had been in the UK for 12 months.

"This would include children fleeing domestic violence or abuse without access to their documents and children who, for reasons entirely beyond their control, had never had their immigration status regularised.

"Children cannot be expected to navigate the legal system without legal advice and assistance."

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