Residence test on legal aid could cost councils millions

Report says the government's proposed change will lead to a rise in homelessness and private legal fees.

Photo: John Curtis/Rex Features

Changes to legal aid eligibility will drive up homelessness and see councils forking out millions of pounds in private legal fees on behalf of vulnerable children according to a report from a group of local authority and voluntary sector organisations.

The No Recourse to Public Funds Network (NRPF) is part of the joint Association of Directors of Adult Social Services (DASS) and Association of Directors of Children’s Services (ADCS) Asylum Taskforce and provides support and advice to social workers.

It analysed the impact of the government’s proposed residence test for legal aid and estimates it could cost councils an extra £26m per year in total.

The residence test would mean people could not get legal aid unless they were living in the UK lawfully or had, at some time, resided lawfully in the UK for at least a year. This will prevent many asylum seekers obtaining legal aid for cases involving loss of home, dangerous accommodation, equality and discrimination as well as human rights.

However, the NRPF Network says many asylum seekers will still be able to demand support from council social services departments when they present as homeless, particularly families with children.

Currently a local authority will support about 56 such cases a year at a cost of £16,000 each. Even a small increase of five cases a year per council would result in an overall cost of £16million across the country.

Councils would also be at risk of having to pay the legal fees for children in need, the Network claims.

Currently a large number of children in need and care leavers access legal aid for judicial reviews, to challenge age assessments or incorrect grants of leave. Many of these cases concern conventions of human rights such as the right to private and family life.

It argues that in some of these cases the duty of the local authority to safeguard a child may be sufficient that by not providing legal representation, it would leave a council open to a negligence suit or a finding of irrationality in a judicial review case.

“In effect each local authority would need to consider establishing their own mini legal aid system, with adequate means/merits processes and safeguards, and this is likely to be extraordinarily expensive and legally complex,” the report claims.

It points out that if every local authority funded just one judicial review this would cost over £2m per year plus an enormous amount of local authority staff time. However, some areas, such as Kent and Hillingdon which have high levels of migrants and unaccompanied migrant children, would have much higher costs.

“Due to the lack of targeted research in this area it is difficult to estimate a total figure accurately but, again, it is clear that the proposed residence test [in relation to private legal fees] carries a high risk of having an extremely severe cost impact to local taxpayers, this could easily be in the region of £10m per year.”

The report also highlighted that the exceptional funding scheme run by the Legal Aid Agency has so far refused all applications made on behalf of otherwise unrepresented children.

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