In September 2013 the Lord Chancellor proposed bringing in a residence test with regard to the provision of Legal Aid. The proposal involved an amendment to the Legal Aid, Sentencing and Punishment of Offenders Act (LASPOA) 2012 by means of a statutory instrument. Public Law Project (PLP) took a challenge to this proposal on the basis that it was outside the aims of LASPOA 2012 and that it was discriminatory. Before the High Court PLP were successful. The Lord Chancellor appealed to the Court of Appeal and the Court of Appeal allowed this appeal.
Lord Justice Laws gave the leading judgment of the Court of Appeal.
On the question of whether the proposed statutory instrument was outside the powers of LASPOA 2012, he stated:-
….the reality is that need and cost are not strange bedfellows. It must be obvious that in circumstances of financial stringency choices as to the disposition of public funds in a particular area will focus on need for the service in question….But that necessity does not tell us that the only criterion by which the Lord Chancellor may limit or restrict the provision of civil legal aid is the perceived need of its potential recipients (para 21).
He continued as follows:-
Overall, in my judgment, the terms of the statute do not indicate that its purpose is to be read as ‘narrowly’ as Mr Fordham [for PLP] would have it. In particular, the unsurprising (I think inevitable) fact that the contents of Part 1 of Schedule 1 are needs-based does not suggest, far less require, that the expression in s41 (2) (b) [one of the provisions that allows for amendments to LASPOA 2012] to ‘a particular class of individual’ is on its true construction limited by reference to the needs of the class’s members. To my mind it is clearly wide enough to encompass characteristics of a class which to a rational mind are material to the heightened efficiency of civil legal aid: an objective which plainly includes the saving of public funds (para 23).
With regard to the claim by PLP that there was discrimination in terms of Article 8 of the Human Rights Act (the right to respect for private and family life and home) when read with Article 14 (the discrimination article), Laws LJ stated:-
In light of all these considerations, the ‘manifestly without reasonable foundation’ test for justification constitutes in my judgment the law’s default position in any discrimination case where the subject-matter is one of broad, or strategic, economic and/or social policy. It will however be disapplied and a more vigorous, intrusive approach adopted, where either the grounds of discrimination or the context of the case call for the law’s special protection: the former because of the law’s attribution of value to every individual, the latter because of the law’s special responsibility in certain areas such as access to justice (para 38).
In my judgment it is clear that the respondent PLP cannot look to the courts to exercise an intrusive judgment by reference to the grounds of discrimination which are inherent in the Order under challenge. Place of residence – the ground in question – is not a characteristic, such as sex or race, which is specially protected by the law on the footing I have described (para 39).
It is believed that PLP will be seeking leave to petition the Supreme Court against this extremely disappointing Judgment.
Legal Action Magazine has written of this decision:-
The July 2014 Judgment [of the High Court] quoted an example provided by solicitor Nicola Mackintosh of one of her clients, a severely learning disabled adult, who had been ‘forced to live in a dog kennel outside the house, had been beaten regularly by his brother and mother, and starved over an extensive period of time’. With the benefit of Legal Aid and the involvement of the Official Solicitor, proceedings in the Court of Protection resulted in a determination that it was in [the client’s] best interests to live separately from his family in a small group home with his friends and peers and 24 hour care. Yet, as Ms Mackintosh explains it would have been impossible to ascertain whether [the client] met the residence test (Legal Action December 2015 page 4).
Additionally, there is concern that any regulations with regard to Legal Aid applicants having to prove residence will lead to even more bureaucracy and will also lead to large numbers of people who ought to satisfy any test also being denied Legal Aid. See:-