Published: 3 Mar 2015 by Vicky Pearlman

In a judgment handed down this morning, the High Court has ruled that regulations brought in by Chris Grayling, the Lord Chancellor, in April 2014 to cut legal aid funding for judicial review are unlawful.

This is a significant decision for homeless families in the most dire of circumstances, who could now get legal aid to challenge unlawful decisions and get the support that they need. More details on both the case and the judgment can be found here.

As we have explained previously, homeless families are usually entitled to some sort of assistance from the local authority. But they are sometimes wrongly told that no further help is available. It’s then that they often turn to Shelter or other legal advisers for help.

At this point, homeless families have already hit rock bottom. When a council fails to meet its legal duties towards them, judicial review is often the only safety net they have left. With legal aid to pay for advice, unlawful decisions can be challenged to get a roof over their head. 

The Government’s decision to restrict legal aid for Judicial Review challenges of decisions made by public bodies (including local housing authorities) has made it increasingly difficult for families facing eviction to get the legal advice they need to make their local council fulfil their statutory duties to help them. We see cases, on a daily basis, in which housing and social services have failed to properly assess the needs of homeless families, leaving them in miserable and dangerous situations when the safety net should be kicking in to help them back onto their feet. We know families who have slept rough because they have been refused the assistance to which they are entitled.

Sara was undergoing treatment for cancer when her landlord decided to sell the home she was renting with her husband, making them homeless. Their local authority refused to provide temporary accommodation on the basis that Sara was not ‘vulnerable’ because her husband could care for her. Despite medical evidence that she needed to be somewhere warm and dry and that, if she was on the streets, she was very likely to get an infection, the local authority still did not change their position. Only when faced with a judicial review and court action did the local authority back down and agree to accommodate the couple.  

The changes to legal aid meant that it was far more difficult and risky for Shelter and other legal aid solicitors to take on a case in the hope of getting a speedy resolution for the family. The regulations, which have now been declared unlawful, there was no guarantee that the work undertaken by Shelter, in preparing the claim for judicial review and negotiating with the local authority, would be paid for. We can, and do, use some of our voluntary income to do this, but we cannot fund it all. The work takes up a great deal of time but, with the support of Legal Aid, we can often achieve a successful outcome for the family.

We try not to resort to judicial review. It is far better to negotiate with the local authority before court proceedings are issued – but negotiation is often only possible if the local authority knows they could be held to account through judicial review. This is key: evidence gathered from Shelter services showed that, in the first quarter of 2014, our solicitors and advisors successfully used the threat of judicial review more than once every working day in order challenge decisions made by local authorities, helping to prevent people from becoming street homeless.

In challenging the regulations, the claimants (represented by the Public Law Project and Doughty Street Chambers) were concerned that the financial risk introduced by the regulations would have a ‘chilling effect’ on access to justice for vulnerable clients because they could no longer find solicitors able to take on their case. They challenged the lawfulness of regulations arguing, amongst other things, that they were inconsistent with the law governing entitlement to legal aid.

In today’s judgment, the High Court has found that the impact of the regulations go far further in restricting legal aid for judicial review than was intended, which makes them unlawful. This is a hugely important step in ensuring that people like Sara get the help that they need to challenge badly made decisions by public bodies and prevent them from becoming street homeless.