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Family Law

The leading authority on all aspects of family law

01 DEC 2015

Legal aid: narrowing of residence test is lawful, says Court of Appeal

David Burrows

Solicitor Advocate

@dbfamilylaw

Legal aid: narrowing of residence test is lawful, says Court of Appeal

In Public Law Project v The Lord Chancellor [2015] EWCA Civ 1193 the Court of Appeal have reversed a Divisional Court decision in Public Law Project v The Secretary of State for Justice [2014] EWHC 2365 (Admin), which had found certain legal aid provisions ultra vires the legal aid legislation and discriminatory. The court therefore declared that legislation which the Lord Chancellor proposed to introduce by statutory instrument would be unlawful.

In the delegated legislation, the Lord Chancellor had proposed further to narrow the existing categories of legal aid provision, and to do so under powers in Legal Aid Sentencing and Punishment of Offenders Act 2012 (LASPO 2012) ss 9 and 41 by SI by reference to a residence test for prospective applicants. The intended restriction (set out in para [7] of Laws LJ’s judgment) is to curtail legal aid for those not resident in the United Kingdom, Channel Islands etc for 12 months or more; though there are limited exceptions from this (eg for domestic abuse); and applications for an exceptional case determination (LASPO 2012, s 10) would still be available, regardless of residence.

In his analysis of the Divisional Court’s judgment (per Moses LJ), Laws LJ in the Court of Appeal took the two bases of the declaration: the powers of the Lord Chancellor and the allegation as to discrimination. On the first, Laws LJ narrowed his answer down to the assertion that the needs provisions in LASPO 2012 can be connoted with cost; and that where the latter demands the former must give way (para [21]). A residence test is well within the scope of such a [political] strategy’ (para [23]) and therefore within the terms of ss 9(2)(b) and 41(2)(b).

As Laws LJ saw it, discrimination raised wider issues; though in the end they pointed in the same direction as vires – that the proposed scheme was within the scope of what was intended by LASPO 2012. In particular he stressed the European jurisprudence that discrimination, to be found to apply, must be shown to be ‘manifestly without reasonable foundation’ (Stec v UK (Applications Nos 65731/01 and 65900/01); and he could not find that to be the case in respect of this proposed delegated legislation (para [45]).

There will be a band of exceptions to the residence test which may affect the family lawyer and his/her client – domestic abuse is the example given. The exceptions will require to be studied when a client comes for advice and their residence is short of a year. As ever, in cases where breach of European Convention 1950 principles applies an exceptional case determination may be possible (LASPO 2012, s 10 as explained by IS v The Director of Legal Aid Casework & Anor [2015] EWHC 1965 (Admin), Collins J), even though the residence test is not satisfied.

Three judges went one way in the Divisional Court. Three judges went the other way in the Court of Appeal. Permission to appeal to the Supreme Court is awaited. Is it possible that this case will be the first that finds the 2012 Act before the Supreme Court?

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