Residence Test Q & A
The proposed “residence test” is a discriminatory measure that will prevent certain people from accessing justice solely because they are considered to have an insufficient connection to the UK.
The government intends to introduce a test of ‘residence’ to determine whether a person is eligible for legal aid by passing regulations under the Legal Aid Sentencing and Punishment of Offenders Act 2012 (LASPO). If the planned “residence test” is implemented, only those who are lawfully resident, and who have been lawfully resident for a certain amount of time, or come within limited exceptions, will be able to get legal aid funding. Those who do not pass the residence test will only be able to get legal aid if they are granted exceptional case funding by the Legal Aid Agency.
The “residence test” will affect anyone who needs legal aid and is not able to prove that they meet its requirements. This will include both foreign nationals and British citizens, both adults and children.
The evidence before the Divisional Court and the Court of Appeal in our challenge to the “residence test” contained many examples of people who could be affected by it. These included a woman with learning disabilities who had been imprisoned in a kennel by her husband’s family, parents of children with special educational needs who had been failed by local authorities, and children left destitute as a result of local authority disputes over responsibility.
If the residence test is brought into force, those affected will not be able to access legal advice and representation to which they would otherwise be entitled, and will be prevented from holding public bodies to account and enforcing their rights.
The way in which the government intends to introduce the “residence test” also raises issues of accountability. Parliament debated the contents of LASPO in great detail, but the “residence test” was not proposed until after LASPO had entered into force. There was no indication until the “residence test” was proposed that the delegated powers under LASPO would be used to remove legal aid from a class of otherwise eligible people. When LASPO was being debated, the government assured Parliament that access to justice would be protected; the residence test will impede access to justice and is clearly contrary to this commitment.
PLP has brought a judicial review challenge to the “residence test” which, if successful, could prevent it from being introduced.
PLP’s challenge succeeded in the Divisional Court in 2014. You can access the judgment here. The Court found that, in introducing the test, the Lord Chancellor had exceeded the power given to him by Parliament in LASPO. The Court also found that the test was unjustifiably discriminatory.
The Lord Chancellor appealed and, in December 2015, the Court of Appeal reversed the judgment of the Divisional Court. You can access the judgment here. The Court of Appeal found that the introduction of the residence test was within the power of the Lord Chancellor and that any discrimination was justified.
PLP applied to the Supreme Court for permission to appeal the decision of the Court of Appeal, and permission has been granted for the appeal, see here. The appeal has been expedited and listed for hearing on 18th and 19th April 2016.
If our appeal to the Supreme Court does not succeed, PLP will be liable for the costs incurred by the Lord Chancellor in defending it. We have applied for an order limiting our liability for the Lord Chancellor’s costs, without which we will not be able to continue with the appeal. However, we need to fundraise part of the costs, and one way in which you can help is to contribute to our fighting fund. You can donate to PLP's Fighting Fund to challenge the Residence Test in The Supreme Court, here.
 The draft regulation (the Legal Aid, Sentencing and Punishment of Offenders Act 2012 (Amendment of Schedule 1) Order 2014 was laid before Parliament on 31 March 2014. It was withdrawn on 16 July 2015 after the Divisional Court judgment, and before the House of Lords voted on it. No further regulations have been laid, and it is understood that the government does not intend to introduce the residence test until summer 2016.
 The draft regulation provided for the residence to be in the UK, Channel Islands, Isle of Man or a British Overseas Territory.
 The draft regulation required 12 months continuous residence with no more than 30 day’s absence at any time in the past.
 The draft regulation clarified that certain individuals did not need to meet the residence test e.g. children less than 12 months old, asylum seekers and members of the armed forces; and exempted certain types of case e.g. deprivation of liberty cases and SIAC cases.