The Government’s controversial proposal to prevent those who could not prove 12 months of lawful residence in the UK from accessing civil legal aid has been declared unlawful by the Divisional Court in R (on the application of the Public Law Project) v The Secretary of State for Justice [2014] EWHC 2365 (Admin).

The proposals, if approved by Parliament, would have excluded a number of people from accessing legal aid despite bringing cases that would otherwise have been deemed meritorious and high priority.  The court gave a number of examples of people who would have been prevented from accessing legal aid. This included the example of P, a severely learning disabled adult who had been forced to live in a dog kennel and who had been regularly beaten by his brother and mother. With the benefit of legal aid, proceedings in the Court of Protection resulted in P being moved to a small group home where he would be provided with 24 hour care. It would have been impossible to determine whether P had been lawfully resident in the UK for 12 months.

The Divisional Court determined that a residence test could not be introduced by secondary legislation. Any regulation made under an Act of Parliament, in this case the Legal Aid Sentencing and Punishment of Offenders Act 2012 (LASPO), must be consistent with the aim of that act. LASPO’s intention was to prioritise legal aid for those cases in greatest need. To introduce a residence test through secondary legislation would not be compatible with that intention of the primary legislation. The Court noted:

No one can pretend that removing legal aid from non-residents is a means of targeting legal aid at those most in need. Non-residents who fall within those cases identified as being of greatest need are not in any less need by reason of their status as non-residents” [42].

The Court also determined that introducing a residence test would amount to unlawful discrimination. Equality before the law is not a welfare benefit comparable to benefits.The Court observed:

Feelings of hostility to the alien or foreigner are common, particularly in relation to the distribution of welfare benefits. But they surely form no part of any justification for discrimination amongst those who, apart from the fact that they are 'foreign', would be entitled to legal assistance. Certainly it is not possible to justify such discrimination in an area where all are equally subject to the law, resident or not, and equally entitled to its protection, resident or not [84].

The Court concluded that the residence test was not a lawful ground for discriminating between those who would otherwise be eligible for legal assistance under LASPO.