Silhouette of mother and child. Wyncliffe/Flikr. Some rights reserved.
Earlier this year the Supreme Court agreed with the Public Law Project that government plans to introduce a ‘residence test’ for legal aid eligibility were unlawful. The residence test, if implemented, would have denied legal aid to those who came to the UK recently or who lived abroad. It would have had a catastrophic impact on access to justice and undermined the fundamental principle that all equally enjoy the protection of our laws. The Supreme Court’s decision was an important step in the fight to protect access to justice in the UK and the rights of some of the most vulnerable in our society.
I represent many families who would have been barred from receiving legal aid under the residence test. Without the ability to protect their rights, many of these families would be left homeless, unable to feed and clothe their families, and would not be able to claim the support they need to care for disabled family members. Here are the stories of two such families…
Even when Martha and her baby ended up street homeless in the middle of winter neither authority would help.
A mother and baby living on the streets in winter
Martha is the mother of a 6 month-old baby. She was not able to claim housing assistance from the local authority's housing department because of her immigration status. She was staying with a friend who insisted that they had to leave. She approached the local authority where she was living and asked for help. They started an assessment to see if she was eligible for support. But when Martha was made homeless a few days later and stayed with a different friend for a few nights in a neighbouring borough, she was told she would need to approach the other authority area for help. Martha did so but was sent back to the first local authority.
Martha went backwards and forwards and neither authority would help. Even when Martha and her baby ended up street homeless in the middle of winter both local authorities still refused to assist. That is until judicial review proceedings were issued. Only then did at least one of the local authorities provide accommodation. Without legal representation and legal aid this young baby and mother would have remained on the streets.
A family of five go hungry
Omari is a mother to four children, two of whom are severely disabled. She had recently acquired leave to remain in the UK but could not claim welfare benefits because of her immigration status. Eventually, after an inexplicable delay, the family were given some financial support by the local authority. But this amounted to just a travel pass and £70 in supermarket vouchers each week. It was simply not enough for Omari to be able to meet the needs of her family. Frequently they could not afford essentials such as food or nappies. They suffered poverty and hardship which no child should endure.
Omari told her social worker what was happening, as did a local charity and the children’s school. But months passed and nothing happened. It took the issuing of judicial review proceedings for the local authority finally to agree to increase their support to an acceptable amount.
David and Goliath
Sadly Martha and Omari’s situations are only too common. I frequently encounter families who are homeless or facing homelessness who are being refused support from their local authority. Or, where help is being given, the support provided is wholly unsuitable or inadequate. When my clients have tried to object or raise concerns they are often ignored. On their own they are left with no other option but to just accept the decision, no matter how unlawful that decision may be.
Even if my clients could afford the court fees and were to try and litigate the issues themselves, without legal representation, they would be highly unlikely to be successful or even get their case off the ground. These cases raise complicated legal arguments and my clients have no means of accessing the legal resources necessary to effectively argue the case, nor any experience of doing so. Where English is not their first language or where literacy is an issue, there can be an even greater disadvantage.
And even if they were able to overcome all the financial, legal and procedural obstacles, it would still not be a fair fight. My clients would be litigants in person against defendants with solicitors and counsel experienced at defending such claims. They would not stand a chance.
Protecting access to justice for the most vulnerable
Without legal aid, Martha, Omari and the many others in similar situations would not have recourse to the legal representation they need to challenge unlawful decisions that left them hungry, homeless and desperate. Access to justice would be denied to them. Public bodies would be free to act with impunity.
We should all want to live in a country which guarantees basic safeguards for the most vulnerable people in society, regardless of their immigration status. The Supreme Court made the right decision on the residence test but the government has successfully curbed access to justice in other ways, particularly with the legal aid reforms contained in LASPO 2012. The government review of this legislation is well overdue.
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