UKSC finds proposed residence test for civil legal aid claims in England to be ultra vires



John Halford

The UK government has been forced to back down on introducing a residence test for civil legal aid claims in England and Wales.

The UK Supreme Court yesterday ruled that the proposed residence test was ultra vires the enabling legislation and so without any legal authorisation.

The challenge was brought by the Public Law Project (PLP), a legal charity which was represented by barristers Michael Fordham QCBen JaffeyNaina Patel and Alison Pickup, and solicitor John Halford of Bindmans LLP.

The case went to the Supreme Court after a Court of Appeal ruling in November 2015 which overturned a specially-convened three-judge Divisional Court’s judgment that the test was unauthorised by Parliament, discriminatory and impossible to justify.

The case was decided by a seven-Justice court (Lord NeubergerLady HaleLord ManceLord ReedLord CarnwathLord Hughes and Lord Toulson) because of its constitutional importance.

The hearing was brought forward from December after the Lord Chancellor indicated he would implement his proposals this Summer.

Mr Halford said: “The British legal system is rooted in two fundamental principles - that all equally enjoy the protection of ours laws and all are accountable to our Courts.

“The Lord Chancellor takes an oath of office to honour these principles, but planned to undermine them by withholding legal aid from those who failed his residence test, leaving them powerless to enforce legal rights in the most compelling cases.

“Yet today, after minutes of deliberation, seven Justices of our highest court held him accountable, ruling he was acting in a legal vacuum and without Parliamentary authority. They were right to do so - rationing British justice using a residence test is repugnant to British law.”

The court’s full written judgment has been reserved.