In an unexpected, but hugely welcome, turn of events, the Supreme Court yesterday found the Government’s proposed Residence Test for Legal Aid unlawful.
Most unusually, the Court gave its decision at the end of the first day of a two-day hearing, deciding that it didn’t need to hear the evidence on whether it was discriminatory. We will learn more about the reasons for their decision in due course.
The Residence Test would have prevented people who could not prove that they had been lawfully resident in the UK for 12 months from receiving civil Legal Aid.
The challenge was brought by the Public Law Project and their solicitors, Bindmans LLP, who had taken the case to the Supreme Court following a successful Government appeal at the end of 2015. Shelter provided a witness statement in support of PLP’s original High Court challenge, because we have long been concerned that the test would have a devastating and discriminatory impact on access to justice, as well as penalising homeless people in the most vulnerable situations.
Implementing the test would have meant that every single person needing Legal Aid would need to produce three separate pieces of evidence to prove their residence, creating an enormous bureaucratic headache. Even more worryingly, it would mean that even people entitled to Legal Aid, but who lacked the evidence to prove it, might be refused assistance.
We have written before about the families that Shelter advises, every week, who are facing homelessness, destitution or the possibility of children being taken into care because local authorities have refused to accommodate them under the Housing Act 1996 or the Children Act 1989.
We often encounter people – like Jane, who featured in a previous blog – who have been lawfully resident in Britain for years, but who don’t have the documents in their possession to prove their status. For example, their passport and other paperwork might be with the Home Office, or a family might have been illegally evicted by a private landlord and their personal papers have been lost or are locked inside their former home.
But now the Supreme Court has decided that the Residence Test regulations are unlawful. This is because the Court found that the government did not have the powers necessary under the Legal Aid, Sentencing and Punishment of Offenders Act 2012 (LASPO) to impose such a further restriction through regulations. Although this is a hugely significant win, this might not be the last we see of the test, as so far the Court has ruled against the form in which the test was introduced and not the substance of it. So the Government will now need to introduce new legislation if it wants to bring in the test, and with it win a Parliamentary debate.
We very much hope that this Supreme Court ruling will mean the law can continue to protect those facing homelessness and in need of help, so that families can access the legal advice and support they need to keep a roof over their heads.
