15 Jul 2014
While today’s news agenda is dominated by the Cabinet reshuffle, news from the courts has given us at Shelter cause for a big sigh of relief. This morning, in response to a challenge brought by legal charity the Public Law Partnership, the High Court has ruled that Government changes, which would have left homeless families without help, have been ruled ‘unauthorised, discriminatory and impossible to justify’.
Regulations introducing a residence test for civil Legal Aid were aimed at preventing those who could not prove that they had been lawfully resident in the UK from receiving Legal Aid. The test would withhold Legal Aid from recent, lawful migrants and irregular migrants. It would also catch British nationals, including children, born and living abroad, along with people unable to prove past residence, including women fleeing domestic violence, victims of trafficking and families with pre-school age children.
Every week, Shelter advises families who are facing homelessness, destitution or the possibility of children being taken into care because local authorities are unwilling to comply with their duties under the Housing Act 1996 or the Children Act 1989. We often encounter people who have been lawfully resident in the UK for years, but who don’t have the documents in their possession to prove their status. The most common examples of this problem occur where the person’s passport and other paperwork are with the Home Office; or where a family have been illegally evicted by a private landlord and find that their personal papers have been lost or are locked inside their former home.
Legal Aid helps people like Pauline, who came to Shelter having been evicted from her private rental along with her 5 year old daughter, Melissa. Pauline is Jamaican but was applying for leave to remain in the UK with her daughter, having fled her violent husband, a serving member of the British Armed forces. Melissa is British and her father had a visiting order which prohibited Pauline from taking her daughter out of the country without his permission.
Following their eviction, Pauline had been taken in by friends, but they wanted her to leave. She had no money. To keep warm on winter days, she spent the daytimes at her daughter’s school or in the A&E waiting area of the local hospital. She approached social services for assistance but they refused to accommodate mother and child together, and proposed to place Melissa in foster care, saying that Pauline could visit her there. At this news, Melissa’s headteacher wrote a letter of concern, saying how damaging this would be to Melissa’s well-being, stating that Pauline was a very good parent who had nurtured and cared for her daughter and produced a ‘high achieving, well-mannered and motivated little girl’. Separation would have been catastrophic for them both.
Shelter challenged the council’s decision, on the basis that they should provide accommodation and support for the Melissa and Pauline together, pending the outcome of Pauline’s application to remain in the UK. In the course of the proceedings, Pauline was granted indefinite leave to remain and became eligible for housing benefit and homelessness assistance.
But if the residence test was in force, Pauline would not have been entitled to Legal Aid to challenge the council’s decision. This would have resulted in a little girl being taken into costly foster care while her caring mother faced destitution.
So we are incredibly relieved by today’s unanimous judgment. Having been laid before Parliament at the end of March, the regulations are due to come into force on 4 August but require a vote in both Houses of Parliament. Despite two Parliamentary Joint Committees expressing concerns over their legality, they were voted through the Commons on 9 July by 273 to 203 votes. They are due for a Lords vote on 21 July and Shelter, along with over 30 other organisations has signed a joint briefing calling on the Lords to reject the regulations.
Responding to PLP’s arguments on the legality and likely effects of the regulations, for which Shelter – along with over 20 other organisations – had provided evidence, lead High Court judge Lord Justice Moses ruled that the regulations were ultra vires and unlawful because the Legal Aid, Sentencing and Punishment of Offenders Act 2012 ‘does not permit such a criterion to be introduced by secondary legislation’ and it ‘is and was beyond question that the introduction of such a test was discriminatory…indeed that was its declared purpose’ – which couldn’t be justified.
The Government had in part justified the regulations on the grounds of the cost to taxpayers, but during the House of Commons debate, Justice Minister Shailesh Vara admitted that the Government had ‘no precise figures’ to show any savings would be made from the regulations – and the court ruled that it would not be legitimate to discriminate solely on the grounds of saving money. We sincerely hope that the Minister will now withdraw the regulations, saving many homeless families the heartache of destitution or unnecessary separation because they are without Legal Aid to help them access justice.