Joint Committee on Human Rights
Oral evidence: Legal aid: children and the residence test, HC 234
Wednesday 11 June 2014
Ordered by the House of Lords to be published on 11 June 2014.
Ordered by the House of Commons to be published on 11 June 2014.
Watch the meeting [hyperlink to evidence session]
Members present: Dr Hywel Francis (Chair); Baroness Berridge; Mr Robert Buckland MP; Baroness Buscombe; Gareth Johnson MP; Baroness Kennedy of the Shaws; Baroness Lister of Burtersett; and Baroness O’Loan
Questions 1-8
Witnesses: Dr Maggie Atkinson, Children’s Commissioner for England; and Anita Hurrell, Coram Children’s Legal Centre gave evidence.
Q1 Dr Hywel Francis (Chair): Good morning, and welcome to this evidence session of the Joint Committee on Human Rights—an inquiry into the implications for access to justice: the Government’s proposed legal aid reforms. For the record, could you introduce yourselves please?
Dr Maggie Atkinson: I am Dr Maggie Atkinson, the Children’s Commissioner for England.
Anita Hurrell: My name is Anita Hurrell and I am the legal and political officer for Coram Children’s Legal Centre.
The Chair: Thank you very much. Could I begin by asking you the first question on children and the residence test? Do you think the residence test as introduced is compatible with the UN Convention on the Rights of the Child? If not, how should the Government amend it to make it compatible?
Dr Maggie Atkinson: Chairman, the first thing to say is that I welcome the concessions that have been made, because they move us closer to being in compliance with the UNCRC. But overall the changes are not compliant; the residence test is not compliant. Article 2 states there will be no discrimination against any child on the soil of a state party that has ratified the convention. Article 3 says that the child’s best interests must be of paramount consideration in any and all proceedings. I cannot remember which number the articles have, but there are articles in the convention that absolutely guarantee the child—any child—the right of access to legal representation and to a legal friend and/or then in the more formal stages if the proceedings go so far as the courts. We did a child rights impact assessment on the entire LASPO Bill, when it was still a Bill, because, as you pointed out on your report, the Government had chosen not to do one. We are about, we think—my barrister has given me permission to say this—to be given permission to intervene, using one of my powers, in a case brought by the Public Law Project, which makes all these cases and all these points. I am told that I can speak about it because we are expecting a judgment very soon. We make our points very strongly in both our witness statement and the intervener statement that it is not compliant with the state’s duties under the UNCRC.
The Chair: Would you like to add to that?
Anita Hurrell: We would echo those concerns. We are concerned that the residence test, as it has been set out, including the exemptions, is not in compliance with the UK’s obligations to children under the UN Convention on the Rights of the Child. We would particularly highlight Article 2, which has been mentioned, on discrimination; Article 3, which states that children have the right to have their best interests treated as a primary consideration in all actions that affect them; and, in particular, Article 12, which states that children shall be provided with the opportunity to be heard in any administrative and judicial proceedings. We do not see how children, as a class of persons, will be able to have those rights realised if the residence test in its current form comes into effect.
Baroness Kennedy of The Shaws: How would you change it?
The Chair: Did Baroness Lister want to ask a question?
Baroness Lister of Burtersett: It was the same question.
Baroness Kennedy of the Shaws: It is the same point. There is a second element to that, which I want to ask about before I move on to the question that I wanted to ask. Is there any amendment that could make the residence test good? For people who are listening, the residence test has been brought in to limit legal aid’s availability, and it mainly hits people who are new to this country: many of them are new arrivals. How could that be amended to make it work?
Dr Maggie Atkinson: The simplistic answer, which you would expect me to give as the Children’s Commissioner, is that matters that apply to children and young people should always be within the scope of legal aid. Very particularly—we say this in our witness statement as well—if, for example, they are unaccompanied and seeking asylum, and therefore have no adult to speak for them, it is counter to natural justice and to the equality of arms that children right across the board, let alone in the residence test, are not considered vulnerable, likely to have less capacity, likely to need a legal friend, and then further legal support.
Baroness Kennedy of the Shaws: You are really saying that the only amendment that would work for you, and probably for Coram, is that children should be excluded from the residence test.
Dr Maggie Atkinson: We believe that they should be excluded. We recognise that children under one are now excluded, and that is a significant concession, but vulnerable children and anybody who is brand new in the country, particularly if they are unaccompanied, are particularly vulnerable and should be excluded from being barred from legal aid.
Q2 Baroness Kennedy of the Shaws: You have already moved on to the issue that I wanted to raise, which is unaccompanied children, particularly those who might be seeking asylum. Child asylum seekers pose very real problems. Why do you have very special concerns about those vulnerable children?
Dr Maggie Atkinson: We meet them wherever we go, particularly in asylum-seeker charities but also in local authorities, because of course if you claim asylum when you arrive unaccompanied, you are placed in the care of the state. That is very important and a very humanitarian thing for the United Kingdom to have decided. I have met Afghan boys in particular who have spent two and a half years trekking across all sorts of bits of the globe to get here, not knowing who is dead and who is alive at home, and deeply traumatised. Very often they want to go home and give back what they have learnt in England to the country of their birth, if it is safe and if they can. To then say, “Ah well, you don’t qualify for legal aid”—especially given that we are spending money on their care, their health, their psychological well-being, and very often their schooling—and that how well you do in accordance with the law is not within our purview or you are not going to be funded for it, is nonsense. It is a piece of a really significant human rights jigsaw, most of which we have agreed to construct and one bit of which we have decided to throw away.
Anita Hurrell: There is just one quite specific concern that I would highlight in relation to asylum-seeking children. As you know, one of the exemptions from the residence test is for asylum seekers during the process of claiming asylum, as well as during any appeals, until their appeal rights are exhausted. Our specific concern about children is that if they are granted limited leave, or discretionary leave as it used to be known, until the age of seventeen and a half, which most of them are—47% in 2013—they will face a time gap in which they cannot get access to civil legal aid after they have been granted that leave. For example, if they were to have an ongoing age dispute case during the process of claiming asylum, if they are not successful in their asylum claim and are refused asylum but granted another form of leave, they potentially face a time gap. We are very concerned about that, because they would then have to wait and we do not know what would happen to any ongoing proceedings. Would they stop? It is not clear to me from the way the draft order looks whether the proceedings would have to stop or whether there would be provision for any ongoing case to continue. Even if ongoing cases did continue, what would then happen to a new case if the age dispute arose only at that point later? That is a technical but quite serious concern with the way the exemptions work as they are currently drafted.
Q3 Baroness O'Loan: The Government could not accept the Committee’s recommendation that undocumented children should be excluded from the residence test, and there are particular problems for undocumented children arriving here. Can you give us actual examples of circumstances where this would be detrimental to a child?
Anita Hurrell: Broadly, there are two categories. There are children who are undocumented who are on their own in the UK and children who are undocumented who are with their families. Both groups are very vulnerable in different ways. Undocumented children who are in the care of a local authority but who do not claim asylum, and so will not benefit from the asylum seeker exception, already face problems. As you know, they already cannot get access to legal aid for their immigration cases in order to put forward their claims to the Home Office. At the moment, they can still get access to judicial review, but that would be cut off with the residence test. A child who was brought over to the UK at a very early age, taken into the UK care system and nothing was done, for example, about their immigration case or an application was eventually put into the Home Office but the Home Office did not decide on the case for a year or two—we have seen cases like that—would not have access to judicial review to challenge that delay. We are very worried about that kind of case. They will just not have access to civil legal aid for any kind of case, whether it is action against the police, or in respect of unlawful detention, or a damages claim—all sorts of things.
In the case of undocumented families, we have particular concerns about destitute families. Undocumented children in families who might have been in the UK for a very long time but do not have recourse to public funds and have not been able to regularise their status—obviously through no fault of the child—will not have access to civil legal aid to be able to enforce their rights. This is where we get on to Section 17 and Section 20, and the exemption which the Government have provided for in those cases. A family who is destitute, goes to the local authority and asks for a child-in-need assessment to be done because the child is destitute would be able to get advice at the initial legal help stage and to get advice about whether or not a duty is owed to that child by the local authority. But if the solicitor then advised that it was necessary to pursue the remedy of judicial review, at that point they would not be able to get legal aid any more. We were involved in a case with an infant who was two years-old or so, with sickle-cell anaemia, where it was found that the local authority had acted unlawfully in that it recognised that the child was a child in need and was destitute but it had failed to provide support. That kind of case will not be possible with undocumented children. We will not see that happen, which we think will have a knock-on effect in the way local authorities treat these children and abide by their duties to them under the Children Act 1989.
Dr Maggie Atkinson: I have a general comment. The young people who we meet, who tend to be in their later teenage years and facing whatever is coming when they are 18, have very often done extremely well at school, for example. They have been model pupils, want to be model citizens and want to contribute to society, and they hit the point where their status remains either undecided or continues to be, “Asylum claim not granted, discretionary leave and extensions instead. We are not quite sure what your status is, but we know we cannot send you home because it is not safe”. They end up in what they describe to me as a limbo. The psychological effects on them of that are considerable. They look at me and say, “I have 12 GCSEs at grades A* to C and three A-levels. I want to go to university and I cannot. I want to go to university because I want to go home and be a doctor, a lawyer, an engineer or a designer. I know I want to go home, if you will let me, but I cannot. Nor can I work or claim benefits. I sofa surf, become homeless and enter the grey economy or get involved in crime, which actually makes me more expensive rather than less. Had I had legal aid, I might not have been in this position”. They are very articulate and eloquent but also very hurt.
Q4 Baroness Lister of Burtersett: You mentioned one of the problems created by judicial review not being exempt from the residence test for cases involving Sections 17 and 20 of the Children Act 1989. Are there any other problems around that which you would like to tell the Committee about?
Anita Hurrell: I suppose I would just highlight the situation faced by a child advised that they have a meritorious claim and with a solicitor telling them that they could pursue that claim and could need an immediate remedy such as some kind of injunction if the situation that they are living in is very desperate. That same solicitor is going to be advising the child that they cannot help them pursue that claim. They are in effect going to be saying to the child, “You can go to the High Court but you can go there on your own”. We already have trouble explaining to child clients the intricacies of legal aid and how it works, especially now, following the changes brought in in April last year. It is going to be impossible for children to understand that they have this right but that it cannot be enforced.
We also have a concern that perhaps, even though there has been this concession for Section 17 and Section 20 cases, some legal aid providers will be reluctant to take those cases on at that stage because they will use up a matter start, so it affects how much work they can do on their legal aid contracts. Also, they will only be paid a community care fixed fee, which I think is around £200. You might find that those children are not even able to access that minimal initial level of advice on those issues, which are of real importance to children because, especially in the case of unaccompanied children, this is about the local authority providing them with support and meeting their needs in situations where they could be homeless or have nobody with parental responsibility.
Baroness Berridge: You just mentioned a term of art, “matter starts”, which I am sure is common parlance in your field of work but maybe not to many reading the record and perhaps watching this. There is now a limit on the number of matter starts that a legal aid provider can begin. How is that affecting the situation? Can you give a little more explanation of what a matter start is in practice?
Anita Hurrell: In practice, when the Legal Aid Agency and a legal aid provider have a contract, they will stipulate in certain cases the number of matter starts. Sometimes it is a kind of maximum or minimum, but there will essentially be a certain number of cases or separate legal matters that they can take on. If they have only a minimal minimum number, especially in the current legal aid regime, which is quite difficult to make work financially, they might be reluctant to take on a case where they know that there is no hope of it progressing to a more complex stage. They would use up one of their allocated cases.
Baroness Berridge: Is one person a matter start, or is a set of proceedings a matter start?
Anita Hurrell: It is more likely to be one distinct legal matter, but it could just be one case. The simplest way to think of it is as just one case.
Dr Maggie Atkinson: I would reflect, as a legal infant, that if I were a child of any sort, whether resident or otherwise, whether born here or otherwise and whether I spoke English as a first or other language, that sort of complexity would be so befuddling that I would be likely simply to walk away even from trying. If you are a child who is subject to the residence test and you have special needs, additional disabilities or limited capacity, it begins to look like a non-starter. I know it was complex before these reforms, but it feels—my legal expert back at the office tells me that it is—still more complex now than it was. That does not really seem to be a reform.
Q5 Baroness Kennedy of The Shaws: One of the things coming through is that if the firms of solicitors trying to eke out an existence doing this kind of work, which is essentially welfare work, with the poorest and most needy in society, are allocated a certain number of case starts or matter starts and are going to run into difficulties and great complexity with a child, they are going to avoid the difficult cases. That is the problem. I am not talking about the legal argument being difficult, just about it being difficult to get financed. It just becomes impossible for a firm of solicitors to survive doing good work if they are going to run into the hurdle of doing a whole lot of work and suddenly finding that the carpet is pulled from under them.
Dr Maggie Atkinson: I would imagine so, but Anita is probably your expert on that.
Anita Hurrell: At Coram Children’s Legal Centre, we already see that it is difficult to do the administration that goes with legal aid work. Asking children and teenage clients especially for evidence of financial means can already be a challenge, and a provider is not going to want to do a lot of work on a case without knowing that they have fulfilled the compliance requirements for the Legal Aid Agency, because they risk not getting paid. If the residence test is brought in and you explain to a vulnerable teenager that before you can advise them you need to see the proof of their lawful residence, the proof that they live in the UK, the proof that they have lived in the UK for a continuous period of 12 months and all that paperwork—the suggestions that we have point to the fact that the evidence requirements will be quite extensive—we think that lots of young people will fall at that hurdle. They will meet the residence test, but they will be unable to collect those papers and bring them to their solicitor. Potentially, a very large number of children and young people will lose out.
Dr Maggie Atkinson: And they then go missing, ending up still more vulnerable than they were in the first place and potentially less supported and exploited. That is my concern.
Baroness Berridge: I am trying to think right the way through to the conclusion. You have a vulnerable young person who ends up without legal aid or who has not produced the papers to satisfy the residence test. Are they, in practice, then going to end up at the CAB or at the court office counter, saying, “I have this claim, I still want to do it”, so that you then have court staff trying to deal with it? I am trying to see where you see this in practice. Are they going to end up at MPs’ surgeries? I know you said that they are going to go missing, but in terms of the actual administration are they going to end up in those places?
Dr Maggie Atkinson: They tend very often to turn up with faith groups and charities attached to faith groups, which have been told by the word on the street or in their communities. There is, at the very least, some recourse to the basic legal advice that they might need and, potentially, a meal. I have met youngsters who have said, “I cannot stay for the rest of this meeting because I have to go and queue to see if there is a bed at the hostel”. These are 17 year-olds. It beggars belief. I do not know how I would have coped at 17. They could turn up in all the places that you just listed, Baroness Berridge—absolutely they could.
Q6 Mr Robert Buckland: Can I turn to special educational needs? I am sure both of you can help me, but I want to direct this first towards Anita, as I know that Coram raised this issue with the Government. In SEN cases, where legal aid has been retained—a welcome concession by the Government as result of representations by me and a few others—the applicant will, of course, be the parent or the carer. Therefore the nationality status of the applicant could, and would, affect the grant of legal aid to a case that would cover a whole class of children and young people. Can you give us further examples of that sort of problem being encountered by the anomaly that you have outlined?
Anita Hurrell: We are very worried about SEN cases, and in some ways we were quite confused that there was no similar concession to mirror the Section 20/Section 17 concession, because these kinds of cases raise very similar issues: they are about local authorities’ duties to children in need in their area and how they are going to meet those duties. It is particularly surprising to us, I suppose, that we are facing the prospect of children with special educational needs and disabilities being unrepresented in administrative and legal proceedings that will determine their support and what the state provides for them.
As you pointed out, there is the particular anomaly that the applicant for civil legal aid at the tribunal is the parent or guardian, which means that you could have a British child living with one parent who might be undocumented—we see quite a lot of cases like that—and so does not have access to civil legal aid, so they cannot bring an appeal to the tribunal to try to get redress if they feel that their child’s needs are not being met in the way they should be.
Dr Maggie Atkinson: I am a great fan of the tribunal system. I think SENDIST passes down some remarkably arrow-straight and very clear judgments on what should be happening, and it sets precedents for other providers. The reforms to the special educational needs system that have been brought in through the Children and Families Act are very welcome and system-wide. It therefore seems particularly perverse that there is this fantastic tribunal system, and children can be applicants in person. Then, all of a sudden, your dad or mum does not pass the residence test so you cannot be. You have exactly the same special needs as your counterpart in the same special school and you have exactly the same case to bring to a tribunal, but somehow you do not have equality of access.
Mr Robert Buckland: And you are a British child.
Dr Maggie Atkinson: You are a British child, you have always lived here and you do not speak the French of your west African parents’ original native country. You have never been there, you do not know anybody there, and you have a particular special need that requires the intervention of a tribunal that can make a provider honour what you need—except you cannot.
Mr Robert Buckland: I do not want to put you on the spot with facts and figures, but we are not talking about a big cohort here.
Dr Maggie Atkinson: We are not. In none of the cases that this part of the LASPO Act relates to are we talking about huge numbers of children, or indeed huge numbers of families. We have actually been very effective as a nation, it seems to me, in making sure that our borders are ever more secure, and the pull factor that is sometimes referred to—that if you make it possible to have equality of access to the law, the floodgates open in some far distant land and people get on a bus and come—is not borne out by the evidence. I think we need a grown-up conversation about the most vulnerable in society, who are almost all our children. They are particularly vulnerable when they are marginalised or in need. It is about being generous and living up to the values of a civilised society.
Mr Robert Buckland: That is an important point, because a lot of the debate about migration centres around people’s fears about migration being incentivised by, for example, good-quality special educational needs provision. I know there is evidence within the UK that families do look around and perhaps move to areas where there is better provision, but is there hard evidence out there that can help us to deal with the argument that there is a pull factor bringing people into the UK to access SEN, for example?
Dr Maggie Atkinson: As we have just said, the numbers are small, so it almost always comes down to being able to encapsulate and describe a case or a set of cases. We regularly refer families who have difficulties with special educational needs legislation and/or asylum legislation to organisations such as Coram and Just for Kids Law, because we do not have a legal department: we are too small. We refer them on, and Coram and Just for Kids Law are very often the places we refer them on to. They will probably have case-specific detail which they would be pleased to share with you as a Committee.
Q7 Gareth Johnson: In your opinion, how would you resolve some of the issues that you have talked about, such as children with special educational needs? Would you do away with the residence test, for example, or is there some other solution that you would like to see brought forward?
Dr Maggie Atkinson: I go back to what I said earlier: I seriously believe that children are the least able to speak for themselves, to litigate for themselves, to instruct others for themselves, so in cases involving children, if you are under 18 and therefore a beneficiary of all the elements of the United Nations Convention on the Rights of the Child, you should not have to go through the residence test. It is as simple as that; it should not apply to children.
Gareth Johnson: You would remove that requirement?
Dr Maggie Atkinson: I would, but then I am employed to be the idealist in the room.
Baroness Berridge: Sometimes when people read about this, though, they think that if you get legal aid there is this limitless pot, but there are still criteria for assessing the strength of the case and the evidence behind it in order for a provider to carry on proceedings.
Dr Maggie Atkinson: It is not carte blanche.
Baroness Berridge: No.
Anita Hurrell: No, absolutely. The residence test will not change the existing requirements for legal aid. You have to show that there is merit in bringing the case and obviously that you meet the financial tests to get civil legal aid. I suppose that is really the point, and it comes back to point that the residence test does not change children’s rights and what they are entitled to. It will not mean that children who have some foreign connection are entitled to less support; it will mean that where they are entitled to support they are unable to enforce those rights. It is not about shrinking their entitlements; it is about their having a case and a right, and a government body having a duty to them, but their not being able to have that right realised.
The Chair: You may have answered this question, but could I put it clearly and succinctly? The Government’s policy with regard to the residence test was, I thought, to target legal aid at those with a strong connection to the UK. Given what you have both been saying, you have really been telling us that you do not believe that the test should apply to children.
Dr Maggie Atkinson: I do not, as Children’s Commissioner, and we have said so in a legal case I referenced earlier. How much stronger a connection to the UK could you have than that you were born here? The fact that your parents’ status is in question makes you no less an English-speaking, English school-attending, English friendship group-holding child. You are on our soil, and we signed the United Nations convention. This is its 25th anniversary year. We signed and ratified it, so we should mean it. It is an international treaty.
Anita Hurrell: Yes. The Government have also recognised that asylum seekers, as a group of persons, are—and they have called them this—one of the most vulnerable groups in society. We would argue that children’s vulnerability should be given recognition, and their inability to have their voices effectively heard in administrative and legal proceedings on their own should be recognised. We feel that the exemptions, as far as they have come, do not achieve enough of that. There is a much wider range of circumstances in which children will need recourse to the law, but those cases have not been exempted; only very specific cases have been exempted.
Q8 Baroness Buscombe: I am going to ask the “in conclusion” question. I am trying to get my head around whether there is another solution to this, but are there any questions that you might like to ask that we have not asked already? Legal aid of itself is not necessarily the panacea, is it?
Dr Maggie Atkinson: No, it is not, and actually, as Mr Buckland was saying earlier, the numbers of children whose cases would eventually qualify are probably vanishingly small. Therefore for me, while we have come in through the door of the residence test, a great deal of what is in the LASPO Act, on which this Committee commented in such detail, remains contentious territory. How do you create a system that does not spend as if money was going out of fashion, yet guarantees equality of access to the law for those who would be least well equipped to take it for themselves? They will always be the poorest, the loneliest, the sickest, the most vulnerable, the people with least capacity, so I urge the Committee to continue to have this very strong dialogue as these requirements come into force, because we may end up with the system picking up still greater expense somewhere else because these elements were not—
Baroness Buscombe: Unintended consequences.
Dr Maggie Atkinson: Indeed.
Anita Hurrell: I would like to highlight two issues where I feel we do not have clarity from the Government. I think they have been highlighted by the Secondary Legislation Scrutiny Committee in part, but I want to raise them. One is the issue that I touched upon earlier: does eligibility stop, and at what point is the residence test assessed? The drafts that we have seen seem to suggest that it would be on a given application day, but if your residence status changed during the progression of the case, would your eligibility stop? There is still a lack of clarity around that issue. The Government have said that where an asylum seeker’s application was refused, their eligibility would cease. Does that mean that any ongoing litigation would just come to a halt? I do not think that is necessarily clear.
The second issue is the acceptable forms of evidence. All we have at the moment is the policy statement which the Government published on 31 March along with the draft order and the Explanatory Memorandum. We feel that the list of documents in the policy statement on how people could evidence their status in the UK is quite confusing. It seems to suggest that somebody would need indefinite leave to remain, which is quite different from being lawfully resident in the UK. There is still a lack of clarity about what evidence people need to produce, and what evidential flexibility would mean in practice. Those two issues will definitely need to continue to be pursued.
The Chair: Thank you both for your evidence today. It has been extremely helpful. While it has been a relatively short evidence session, we have covered a great deal of ground and you have been most helpful to us. If you want to add anything, please write to us.
Oral evidence: Legal aid: children and the residence test, HC 234 2