Court of Appeal rules Grayling's legal aid residence test is legal

A controversial 'residence test' restricting eligibility to most forms of civil legal aid is lawful, the Court of Appeal has held.

The government's plan to exclude anyone from accessing civil legal aid that cannot provide proof of 12 months' lawful residence in the UK was declared 'unlawful' in the High Court last year.

However, the appeal ruling reverses the judgment by a specially-convened three-judge Divisional Court that the then Lord Chancellor, Chris Grayling, had exceeded his powers when devising the test and that it discriminated against 'foreigners' without justification.

The Court of Appeal found that ministers may use secondary legislation to withhold legal aid from particular groups of people on cost-saving grounds alone, regardless of need.

The court also held that legal aid is a welfare benefit and withholding it on discriminatory grounds from some of those who need it was justifiable unless 'manifestly without reasonable foundation'.

The legal challenge against the residence test was brought by the Public Law Project and supported by the Office of the Children's Commissioner.

Responding to the Court of Appeal's decision, the charity said it hopes the Supreme Court would urgently consider an appeal before the test is brought into effect.

John Halford, a partner and joint head of the public law and human rights team at Bindmans and who represented the Project, said the decision exposed a fundamental difference in views within the judiciary on the important issue of access to justice.

'When access to justice can only be secured with legal aid, can it be withheld from those who need it most but are not, in the words of the Lord Chancellor's explanation to parliament, "our people" because they live abroad or have come here recently?

'If so, the idea of equality before the law becomes quite meaningless. There is a compelling case for the Supreme Court to give a definitive ruling on who is right. We will be urgently seeking permission to present the case to that court.'

The chair of Resolution, Jo Edwards, said: 'We’re very disappointed by the Court of Appeal’s decision to uphold the government’s residence test. We hope permission will be granted to take the case to the Supreme Court. Resolution is particularly concerned that family mediation will be subject to the test, which may further disadvantage vulnerable people going through a divorce or separation.

The government has failed to make clear why family mediation clients are not exempt from the residence test in the same way as family legal aid clients, even where they are sufferers of domestic abuse. We believe the cost of administering the test will outweigh any modest savings made.'

John van der Luit-Drummond is deputy editor for Solicitors Journal
john.vanderluit@solicitorsjournal.co.uk | @JvdLD