Local authorities not fulfilling their duties to migrant children may no longer be held to account by the courts, as the residence test for legal aid was found lawful last week.
Court of Appeal judges ruled the test, which denies free legal advice to anyone who has not been a lawful resident for at least a year, including current and failed asylum seekers, was legal.
Duties to children
Abi Brunswick, director of the charity Project 17, said she was concerned if local authorities were not being watched by the courts, they would not fulfil their statutory duties to migrant children.
Project 17 is a charity dedicated to supporting migrant children to receive the section 17 support they are entitled to under the Children Act 1989. This includes being accommodated by the council.
The charity uses judicial review to challenge the decisions of local authorities where it believes someone eligible for support is being refused. It has around a 90% success rate of getting local authorities to accommodate clients when it refers their cases to a solicitor.
In many cases a letter from a solicitor was enough to trigger local authority support and the judicial review did not have to go ahead.
Brunswick said: “Support under section 17 is quite poorly implemented, partly because local authorities are under a lot of budgetary pressure.
“If we don’t have the ability to challenge decisions we can’t really enforce local authorities’ duties.”
She said she had seen local authorities turn away homeless families with children and only eventually accept their duty towards them after having a judicial review action brought against them.
Increase in homelessness
“Once local authorities know there is no way of effective challenge I’m not confident they will eventually pick up their section 17 duties. I think it will just lead to an increase in homelessness and safeguarding problems.”
Brunswick added local authorities’ decision-making around whether they had a duty to support someone was already very poor. The challenge to the residence test was brought by legal charity the Public Law Project with the support of the office of the Children’s Commissioner.
The Public Law Project said in a statement it was “looking at options, including seeking an urgent consideration of the case by the Supreme Court of the United Kingdom before the test is implemented”.
Last week’s decision overturned an earlier judgment made in July 2014 that the residence test was both unlawful and discriminatory.
The test was proposed by the then Lord Chancellor, Chris Grayling.
Appeal judge Lord Justice Laws said it was “common ground” that the test was discriminatory under the European Convention on Human Rights, but this could be justified in order to achieve a legitimate aim, for example to save public money.
The appeal judges considered being a resident of a particular country did not fall into the same category as race or sex as protected characteristics based on which you could not discriminate.