The legal aid residency test was a new regulation set out in the 2013 Transforming Legal Aid Consultation paper which the Ministry of Justice was proposing to bring into force. The proposed residency test would mean that you must have lived in the UK for 12 months to be eligible to receive legal aid funding.
The residency test has been challenged in the Supreme Court this year. The case was brought by the Public Law Project as they believed that no Minister should have the power to impose such a regulation and that the residency test would be unlawful.
The Ministry of Justice, however, believed that as legal aid is costly, it should only be available to those who had an established link within the UK.
In 2014 the High Court struck down the regulation. It concluded that the residence test was excessively discriminatory. However, in November 2015 the Court of Appeal overturned the judgement made in the High Court. The Court of Appeal concluded that the earlier ruling placed restraints on the government’s ability to control the legal aid budget. The Court of Appeal felt that discriminating by a place of residence was permissible, as this was not a protected characteristic such as sex or race which is of course protected by law.
In the 2013 Transforming Legal Aid Consultation Paper, the Ministry of Justice had argued that those which do not have a strong connection to the UK should not be prioritised in the same was as those that do.
John Halford, the solicitor at the London law firm Bindmans, who represent PLP, said: “In this country, we are rightly proud we have a legal system which, whilst not perfect, seeks to ensure that anyone can enforce important legal rights and enter the courtroom on an equal footing to their opponents. Legal aid has been available to facilitate this in its current form for over 60 years.
The [justice secretary’s] proposed residence test strikes at the heart of these principles by very deliberately withholding legal aid from those who overwhelmingly will not be British, yet are obliged to obey the law here and so should, equally, be protected by it. We will ask the court to make a definitive ruling that the test is repugnant to British law.” (As quoted in The Guardian).
In a final recent ruling by the Supreme Court this month, the appeal brought by the PLP was allowed. The Supreme Court unanimously ruled against the Ministry of Justice midway through the appeal.
The Supreme Court allowed the appeal on the basis that the Ministry of Justice had acted ultra vires - beyond their powers.
This is seen to be a victory for justice for the UK and this now means that anyone who is eligible for legal aid will continue to be provided with legal aid, no matter how long they have been a resident of the UK for.
If you need assistance with a housing matter please contact our specialist department on 0175 321 6399. Legal aid is available for the majority of housing disputes.
By Katherine McEvoy, housing law team