This week news broke about a row between Westminister and the Senedd regarding the inclusion of care leavers who arrived in the UK as unaccompanied children seeking asylum in their Universal Basic Income Pilot after a letter from a number of Welsh ministers to the Justice Minister, Lord Bellamy was leaked to the Sun. This quickly, and perhaps unsurprisingly, escalated into a row between the various party leaders. But what is the pilot scheme, and what is the row actually about?

The pilot scheme

The aim of the Universal Basic Income Pilot was to assist young people leaving people leaving care who are often forced to support themselves much earlier than their peers.Young people leaving care who turned 18 between 1 July 2022 and 30 June 2023 were eligible to opt in to the pilot, regardless of immigration status or any other characteristic. Those who did would no longer be eligible for universal credit or other standard benefits but would receive a monthly payment of £1,600 (£1,280 after tax). The payments are made for two years following the participant’s 18^th birthday and continue whether or not they are in education or employment. The participant can choose to opt out of the scheme at any point.

One of the key things to understand is that, despite the way it has been reported, this is not a ‘plan’. It is an ongoing pilot scheme. Wales is of course not the first place to conduct a Universal Basic Income trial, a number of countries have done so.

There are pros and cons of universal basic income is beyond the scope of this article, but this report by the Joseph Roundtree Foundation is a good introduction. In terms of this specific cohort, the Welsh government recognised that care leavers are often forced to be ‘independent’ far earlier than their peers and face a number of structural disadvantages. The decision to include care leavers with ongoing asylum claims was deemed in keeping with Wales’s ‘Nation of Sanctuary’ status.

Legal aid and the pilot scheme

At the start of this year, I was involved in providing training for professionals in Wales who are working with unaccompanied asylum seeking children, including social workers and advocates. Questions were raised about legal aid for children in the pilot scheme.

As most readers will be aware legal aid for asylum claims (and most other areas) is means tested. Universal credit is what is known as a ‘passported’ benefit so does not form part of the means assessment. Young people not eligible for benefits are provided with ‘subsistence’ payments by local authorities (a practice common to both England and Wales) which do not come close to taking them over the means threshold.

However, the pilot sums are not classed as passported and it appears that no attempt was made until this week to negotiate with the Ministry of Justice on that point. The point only came to light after young people facing legal difficulties in a number of areas faced losing access to their legal advice after opting in to the pilot scheme.

How did this happen?

It appears that the question of legal aid was simply overlooked. The impact assessment on the pilot scheme includes no mention of the issue.

The Welsh government’s original position was that legal aid should form part of the ‘Better Off’ assessment undertaken by Citizens Advice to help them decide whether to take part in the pilot. Any young person eligible to take part in the pilot should have been invited to complete a better off calculation with qualified advisers. If a participant will not be better off by taking part in the pilot and existing support provisions are a better choice, then they should not take part.

Young people with ongoing asylum claims are perhaps in a better position than others in this regard because they know their case is ongoing. Other young people will of course not know whether in the 2 years of the payments they will need legal representation in some other matter (such as because of a dispute with the local authority).

The Welsh government also said that should participation in the pilot stop a young person receiving legal aid, they could simply opt out. Sadly, this proved not to be so simple. Regulation 17 of the Civil Legal Aid (Financial Resources and Payment for Services) Regulations 2013 regulations makes it clear that divestment of income for the purposes of receiving legal aid is not permissible.

It should be made clear that this is not the current position and that the guidance for the pilot scheme now makes it clear from the start that the amounts being paid (it should be remembered that a number of the young people affected will be in some form of subsidised accommodation) are very likely to mean that legal aid cannot be accessed.

How many young people are affected?

As mentioned at the start, these payments are offered to children who turn 18 in a specific 12-month period, most of which has already passed. It is a far cry from the somewhat hysterical picture of handouts being given to everyone who arrives by boat. But how many are we talking?

Up to 8 March 2023, there were 294 recipients of payments under the pilot, and the Welsh government predicted that about 500 young people will receive payments by the time the scheme closes in June 2023. According to figures from March 2022, about 2% of the total number of children considered ‘looked after’ by Welsh local authorities were also listed as unaccompanied asylum-seeking children. How many of those children turn 18 in the specified period is not known. It also cannot be known how many young people might have been prevented from getting advice on other legal matters (assuming they could find a legal aid lawyer in the first place).

Why all the fuss – and what next?

We live in a time where it is easier to leak a letter to the Sun than amend regulations to protect the rights of a relatively small number of incredibly vulnerable young people, not all of whom are asylum seekers. There is unfortunately not much more to be said on that point.

The Welsh government made a request for the legal aid rules to be eased for recipients of the pilot scheme. At the time of writing the request of the Welsh government has been refused by both Lord Bellamy and the Secretary of State for Wales, David T C Davies MP and claims were made in Parliament on Wednesday that the Welsh government are trying to make payments to illegal migrants. It is unclear what the solution for those affected will be but given the cost of representation for an asylum claim often amounts to thousands of pounds, it is very unlikely that any young people who have been cut out of legal aid by this oversight will be able to properly put forward their case without alternative support.