Post by nickd on Apr 18, 2012 0:59:51 GMT 1
Let's explain the current position with regard to legal help in & up to first - tier tribunal level
for welfare benefit cases
On April 17th 'LASPO' (let's just think of it as the legal aid bill) was debated in the House of Commons. In so far as this thread is concerned, we are going to concentrate on amendment 168 which was passed by the House of Lords' on a motion moved by Baroness Doocey. I'll cover the remaining amendments as an when I can, the current emphasis as far as I, a welfare benefit benefit specialist is concerned, is focussed on amendment (168). In the same debate the House of Commons agreed to a substitute for (169) (Upper Tribunal work) which inserted into the bill at (240) a provision of legal aid in cases on point of law for work in the Upper Tribunal and up to the Supreme Court - this is a welcome amendment for setting precedent, but in terms of how it is likely to assist advice agencies it is a poor compromise for the loss of 168.
Rather than repeat old ground, I refer you to my thoughts on the Upper Tribunal concession here..
mylegal.proboards.com/index.cgi?board=frontline&action=display&thread=647
The debate & the history of what happened
On the day of the debate in the Commons an amendment was moved by Tom Brake & others (a combination of Labour & Libdems, it was a reasonable one and helped in the availability of legal help in and up to the first-tier for welfare benefit cases. Ken Clarke opposed amendment 168 and also the amendment put forward by Brake.
In opening the debate on amendment 168, Ken Clarke demeaned the work specialists do in the first - tier tribunal. Here's what he had to say:
"the advice given by MPs and some members of their staff can be superior to that which is available from a large number of general family solicitors"
Ken Clarke The first point to make about Lords amendment 168 is a financial one. Even bringing advice and assistance into scope for reviews and appeals concerning all welfare benefits, which is the intention behind the amendments, could cost as much as £25 million, and we cannot afford provision in an area of relatively low priority. As I said, we will ask the House to disagree with Lords amendment 168, and we will ask the Reasons Committee to ascribe financial privilege as the reason for doing so. In particular, this is because, in line with the principles I have set out, welfare benefits matters should not generally require specialist legal advice.
Before discussing the other issues, let us consider legal aid for advice on welfare benefits. Every Member sitting in the Chamber is used to giving advice on social security benefits, because we do it all the time, and there are other voluntary bodies that give advice, but we do not get legal aid. I suspect that in an ordinary case, where there is no issue of law and it is a matter of fact, because of the huge complexity of social security regulations, the advice given by MPs and some members of their staff can be superior to that which is available from a large number of general family solicitors, but those solicitors get legal aid. No one else gets legal aid. Legal aid should be for those cases where legal advice and expertise is required, and it should be financed by the taxpayer on legitimate grounds.
Mr Clarke: My right hon. Friend anticipates the concession that I was going to explain; it is in the documents before us, and he has spotted it. Legal aid issues are usually, as everybody knows, about the factual basis of the claim or the proper application of this country’s extremely convoluted social security regulations, which I hope the current Government’s reforms, when we eventually get to a universal benefit, will greatly simplify, but most such issues are not legal. We have a tribunal system that was deliberately designed so that ordinary citizens might access it and argue their case, and when we invented all those tribunals, we went out of our way to say, “They are not courts and you don’t require lawyers, as these are places where people will argue,” but, as my right hon. Friend says, sometimes legal issues are raised in them.
The Government, in response to these debates, have tabled an amendment, which is a concession. It is Government amendment (a) in lieu of Lords amendments 169 and 240, and it would make legal aid and assistance available for welfare benefits appeals on a point of law in the upper tribunal, the Court of Appeal and the Supreme Court. It would also include funding for applications for permission made to the upper tribunal, and it would also make legal representation available for welfare benefits appeals to the Court of Appeal and to the Supreme Court.
Most surprisingly, that Government amendment in lieu was put forward in response to the argument. We did not wish to argue that in such cases, when the whole thing is a point of law, the applicant himself or herself should be expected to represent themselves without legal assistance, so we have tried to define those cases in which legal advice should certainly be available.
My right hon. Friend’s amendment, on the face of it, goes back to the whole of business of whether we should apply legal aid for legal advice in every welfare claim, but the question that concerns him most is, “What about the ones that involve legal issues?”, and I can conceive of cases in the lower tribunals in which what is raised really is a point of law. He wants me to find some equivalent to the upper tribunal, asking, “Is there some situation in which somebody, preferably the tribunal judge, certifies that there is a point of law involved where legal aid should be available?” We do not have such a situation at the moment, and we will have to try to devise one, as there is no system for it: just as we have accepted the argument about legal issues in the upper tribunal, we could of course do so if the same thing arises in the lower.
We will go away and work on the matter."
Perhaps, unsurprisingly developments followed. The Liberals have publicly pledged support in fighting government at many opportunities, this was one of them, this was a good opportunity for them to recover some lost ground in terms of doing something to help out those impacted upon by welfare reform. I can think of no better way of halting some of the disastrous effects which welfare reform will have upon people than keeping open a mechanism of allowing claimants to access statutory funded legal help to enable them to challenge the state where they feel they have been dealt an injustice. This was the Libdems chance to 'put a brake on welfare reform' by insisting on a fundamental principle of promoting access to justice - one at the very core of introducing legal help when the Access to Justice Act was introduced in 1999 - a good day for people with a social welfare law problems I would say.
But Brake blew it; - spectacularly I would say...
Simon Hughes bailed Brake out in what came across as a profound ignorance of the difference between primary and secondary legislation, as well as a somewhat irrelevant relevance to the usefulness of judicial review in terms of its practical application when helping out a client who wants help with drafting his or her ESA appeal in the next week or so.
Simon Hughes: The Secretary of State is being very helpful, and my constituents are absolutely not bothered whether this is a primary or secondary legislation matter, as they just want to know that they will have the support that he talks about.
Brake's blow followed..
Tom Brake: "I thank my right hon. Friend for that intervention and for putting on the record the fact that the Justice Secretary has made that point clear, which is welcome.
Finally, with respect to our Liberal Democrat amendment, I am satisfied the Justice Secretary has given to look at points of law relating to lower tribunals, so it is not my intention to press it to the vote."
Here's the link on Hansard to the debate - it's lines 245 & beforehand which are relevant..
www.publications.parliament.uk/pa/cm201212/cmhansrd/cm120417/debtext/120417-0003.htm
Where we are now
Justice for All has made their position clear
"This debate on 'points of law' in first tier tribunals is a distraction -no alternative to keeping legalaid to challenge govt decisions"
To save me writing too much, I would invite you to read some of media responses to the debate, you can find them here on Ilegal..
ilegal.org.uk/index.cgi?action=display&board=reformnews&thread=4892&page=1#14650
On Twitter #LASPO and on Sadiq Khan's tweet record here
@sadiqkhan bit.ly/HJDtfd
(you may need to copy and paste the Twitter links) & remember you can join in the Twitter conversation in our Twitter feed at the foot of the page - it's well worth signing up as it is a great source of fast moving information on almost everything - it was very lively on Tuesday evening when the debate was on in Parliament.
Government was offering a half - hearted concession which Ken Clarke vowed to look at after talks with the DWP over drawing up secondary legislation - this means it is passed by statutory instruments rather than properly debated legislation. He also talked of making legal aid available in the lower tier tribunals upon an interlocutory referral to a judge. This would be deeply problematic and time consuming, leaving claimants waiting to get their disputes resolved for even longer. He also introduced a poor argument over tribunal proceedings in the first - tier being just issues of fact rather than law.
I was delighted to hear my own MP Dr Sarah Wollaston throw some common sense back at Ken Clarke, she talked a lot of sense..
Dr Wollaston: "I welcome the significant improvements that have been made in respect of domestic violence, so I shall concentrate on Lords amendment 168.
The Secretary of State says that because welfare appeals often involve arguments about points of fact rather than points of law, welfare appellants should not qualify for legal aid. However, justice is about facts. Many of the people whom we meet in our surgeries have fallen through the gaps in Atos assessments. They may not have ticked the right boxes, but within five minutes it is abundantly clear that the wrong decision has been made. In my experience, the expert and professional advice marshalled by the citizens advice bureaux makes all the difference to whether our constituents receive justice. Cost-shifting might be reasonable, but only if the £20 million per year went far enough to fill the gap that has been created.
Historically, South Hams CAB in my area has received 60% of its funding through legal aid. It was not a question of local authority cuts; the authority had not funded the CAB in the first place. Although some of
that £20 million has gone to my local CAB and will make a significant difference, the CAB has nevertheless had to cut staff, and has lost 45 hours per week of high-quality professional time. Of course we all pay tribute to the volunteers, but it is mostly the detailed and specific marshalling of facts by specialists that determines whether the right decision is made at a tribunal.
I believe that the employment of more decision-makers would make a big difference, but I also believe that the work done by CABs saves us a great deal of money in the long term. I ask the Secretary of State to think again about how much more we can do to fill the gap so that our CABs can maintain the incredibly high-quality professional service that they provide for all our constituents."
The issue of fact against law was also well summarised by another Conservative MP..
Robert Buckland "I share the concerns expressed by my hon. Friend the Member for Totnes (Dr Wollaston) about the position on social welfare. I listened carefully, as I said in an intervention, to what the Secretary of State said about the issue of fact versus law. In my experience, which is in a slightly different context, as a criminal practitioner, I have found that the two very often come together. A person does not come through the door of the citizens advice bureau, the law centre or the local practitioner saying, “I am a problem of fact” or, “I am a problem of law.” They come as individuals with a particular issue that needs untangling by somebody with expertise."
In the light of the uncertainty which would revolve around defining fact against law (I share the view that the two simply cannot be separated) and the element of doubt as to how secondary legislation would look in terms of its practical application, I was pleased to see Lord Bach move the following amendment in to Monday's debate on the 23rd April in the House of Lords.
Lord Bach's amendment for welfare benefits
Lord Bach to move, as an amendment to the motion in the name of Lord McNally not to
insist on Amendment 168, at end to insert—
“but do propose the following amendment in lieu—
“(1) Civil legal services for an appeal to a first-tier tribunal, in respect of a social welfare decision relating to a benefit, allowance, payment, credit
or pension under—
(a) the Social Security Contributions and Benefits Act 1992;
(b) the Jobseekers Act 1995;
(c) the State Pension Credit Act 2002;
(d) the Tax Credits Act 2002;
(e) the Welfare Reform Act 2007;
(f) the Welfare Reform Act 2012;
(g) the Vaccine Damage Payments Act 1979;
(h) Part 4 of the Child Maintenance and Other Payments Act 2008;
and
(i) any other enactment relating to social security.
(2) For the purposes of sub-paragraph (1), civil legal services includes
independent advice, assistance and representation.””
So, the amendment being moved by Lord Bach will cover welfare benefit work up to first - tier tribunal level. It is essential that people press their peers to vote for this amendment (made in lieu of 168) if we are retain legal aid funding for CAB/Advice agencies. The more predominant ground upon which it is best advanced is probably best argued by citing examples of the savings it would provide - rather than the cost.
for welfare benefit cases
On April 17th 'LASPO' (let's just think of it as the legal aid bill) was debated in the House of Commons. In so far as this thread is concerned, we are going to concentrate on amendment 168 which was passed by the House of Lords' on a motion moved by Baroness Doocey. I'll cover the remaining amendments as an when I can, the current emphasis as far as I, a welfare benefit benefit specialist is concerned, is focussed on amendment (168). In the same debate the House of Commons agreed to a substitute for (169) (Upper Tribunal work) which inserted into the bill at (240) a provision of legal aid in cases on point of law for work in the Upper Tribunal and up to the Supreme Court - this is a welcome amendment for setting precedent, but in terms of how it is likely to assist advice agencies it is a poor compromise for the loss of 168.
Rather than repeat old ground, I refer you to my thoughts on the Upper Tribunal concession here..
mylegal.proboards.com/index.cgi?board=frontline&action=display&thread=647
The debate & the history of what happened
On the day of the debate in the Commons an amendment was moved by Tom Brake & others (a combination of Labour & Libdems, it was a reasonable one and helped in the availability of legal help in and up to the first-tier for welfare benefit cases. Ken Clarke opposed amendment 168 and also the amendment put forward by Brake.
In opening the debate on amendment 168, Ken Clarke demeaned the work specialists do in the first - tier tribunal. Here's what he had to say:
"the advice given by MPs and some members of their staff can be superior to that which is available from a large number of general family solicitors"
Ken Clarke The first point to make about Lords amendment 168 is a financial one. Even bringing advice and assistance into scope for reviews and appeals concerning all welfare benefits, which is the intention behind the amendments, could cost as much as £25 million, and we cannot afford provision in an area of relatively low priority. As I said, we will ask the House to disagree with Lords amendment 168, and we will ask the Reasons Committee to ascribe financial privilege as the reason for doing so. In particular, this is because, in line with the principles I have set out, welfare benefits matters should not generally require specialist legal advice.
Before discussing the other issues, let us consider legal aid for advice on welfare benefits. Every Member sitting in the Chamber is used to giving advice on social security benefits, because we do it all the time, and there are other voluntary bodies that give advice, but we do not get legal aid. I suspect that in an ordinary case, where there is no issue of law and it is a matter of fact, because of the huge complexity of social security regulations, the advice given by MPs and some members of their staff can be superior to that which is available from a large number of general family solicitors, but those solicitors get legal aid. No one else gets legal aid. Legal aid should be for those cases where legal advice and expertise is required, and it should be financed by the taxpayer on legitimate grounds.
Mr Clarke: My right hon. Friend anticipates the concession that I was going to explain; it is in the documents before us, and he has spotted it. Legal aid issues are usually, as everybody knows, about the factual basis of the claim or the proper application of this country’s extremely convoluted social security regulations, which I hope the current Government’s reforms, when we eventually get to a universal benefit, will greatly simplify, but most such issues are not legal. We have a tribunal system that was deliberately designed so that ordinary citizens might access it and argue their case, and when we invented all those tribunals, we went out of our way to say, “They are not courts and you don’t require lawyers, as these are places where people will argue,” but, as my right hon. Friend says, sometimes legal issues are raised in them.
The Government, in response to these debates, have tabled an amendment, which is a concession. It is Government amendment (a) in lieu of Lords amendments 169 and 240, and it would make legal aid and assistance available for welfare benefits appeals on a point of law in the upper tribunal, the Court of Appeal and the Supreme Court. It would also include funding for applications for permission made to the upper tribunal, and it would also make legal representation available for welfare benefits appeals to the Court of Appeal and to the Supreme Court.
Most surprisingly, that Government amendment in lieu was put forward in response to the argument. We did not wish to argue that in such cases, when the whole thing is a point of law, the applicant himself or herself should be expected to represent themselves without legal assistance, so we have tried to define those cases in which legal advice should certainly be available.
My right hon. Friend’s amendment, on the face of it, goes back to the whole of business of whether we should apply legal aid for legal advice in every welfare claim, but the question that concerns him most is, “What about the ones that involve legal issues?”, and I can conceive of cases in the lower tribunals in which what is raised really is a point of law. He wants me to find some equivalent to the upper tribunal, asking, “Is there some situation in which somebody, preferably the tribunal judge, certifies that there is a point of law involved where legal aid should be available?” We do not have such a situation at the moment, and we will have to try to devise one, as there is no system for it: just as we have accepted the argument about legal issues in the upper tribunal, we could of course do so if the same thing arises in the lower.
We will go away and work on the matter."
Perhaps, unsurprisingly developments followed. The Liberals have publicly pledged support in fighting government at many opportunities, this was one of them, this was a good opportunity for them to recover some lost ground in terms of doing something to help out those impacted upon by welfare reform. I can think of no better way of halting some of the disastrous effects which welfare reform will have upon people than keeping open a mechanism of allowing claimants to access statutory funded legal help to enable them to challenge the state where they feel they have been dealt an injustice. This was the Libdems chance to 'put a brake on welfare reform' by insisting on a fundamental principle of promoting access to justice - one at the very core of introducing legal help when the Access to Justice Act was introduced in 1999 - a good day for people with a social welfare law problems I would say.
But Brake blew it; - spectacularly I would say...
Simon Hughes bailed Brake out in what came across as a profound ignorance of the difference between primary and secondary legislation, as well as a somewhat irrelevant relevance to the usefulness of judicial review in terms of its practical application when helping out a client who wants help with drafting his or her ESA appeal in the next week or so.
Simon Hughes: The Secretary of State is being very helpful, and my constituents are absolutely not bothered whether this is a primary or secondary legislation matter, as they just want to know that they will have the support that he talks about.
Brake's blow followed..
Tom Brake: "I thank my right hon. Friend for that intervention and for putting on the record the fact that the Justice Secretary has made that point clear, which is welcome.
Finally, with respect to our Liberal Democrat amendment, I am satisfied the Justice Secretary has given to look at points of law relating to lower tribunals, so it is not my intention to press it to the vote."
Here's the link on Hansard to the debate - it's lines 245 & beforehand which are relevant..
www.publications.parliament.uk/pa/cm201212/cmhansrd/cm120417/debtext/120417-0003.htm
Where we are now
Justice for All has made their position clear
"This debate on 'points of law' in first tier tribunals is a distraction -no alternative to keeping legalaid to challenge govt decisions"
To save me writing too much, I would invite you to read some of media responses to the debate, you can find them here on Ilegal..
ilegal.org.uk/index.cgi?action=display&board=reformnews&thread=4892&page=1#14650
On Twitter #LASPO and on Sadiq Khan's tweet record here
@sadiqkhan bit.ly/HJDtfd
(you may need to copy and paste the Twitter links) & remember you can join in the Twitter conversation in our Twitter feed at the foot of the page - it's well worth signing up as it is a great source of fast moving information on almost everything - it was very lively on Tuesday evening when the debate was on in Parliament.
Government was offering a half - hearted concession which Ken Clarke vowed to look at after talks with the DWP over drawing up secondary legislation - this means it is passed by statutory instruments rather than properly debated legislation. He also talked of making legal aid available in the lower tier tribunals upon an interlocutory referral to a judge. This would be deeply problematic and time consuming, leaving claimants waiting to get their disputes resolved for even longer. He also introduced a poor argument over tribunal proceedings in the first - tier being just issues of fact rather than law.
I was delighted to hear my own MP Dr Sarah Wollaston throw some common sense back at Ken Clarke, she talked a lot of sense..
Dr Wollaston: "I welcome the significant improvements that have been made in respect of domestic violence, so I shall concentrate on Lords amendment 168.
The Secretary of State says that because welfare appeals often involve arguments about points of fact rather than points of law, welfare appellants should not qualify for legal aid. However, justice is about facts. Many of the people whom we meet in our surgeries have fallen through the gaps in Atos assessments. They may not have ticked the right boxes, but within five minutes it is abundantly clear that the wrong decision has been made. In my experience, the expert and professional advice marshalled by the citizens advice bureaux makes all the difference to whether our constituents receive justice. Cost-shifting might be reasonable, but only if the £20 million per year went far enough to fill the gap that has been created.
Historically, South Hams CAB in my area has received 60% of its funding through legal aid. It was not a question of local authority cuts; the authority had not funded the CAB in the first place. Although some of
that £20 million has gone to my local CAB and will make a significant difference, the CAB has nevertheless had to cut staff, and has lost 45 hours per week of high-quality professional time. Of course we all pay tribute to the volunteers, but it is mostly the detailed and specific marshalling of facts by specialists that determines whether the right decision is made at a tribunal.
I believe that the employment of more decision-makers would make a big difference, but I also believe that the work done by CABs saves us a great deal of money in the long term. I ask the Secretary of State to think again about how much more we can do to fill the gap so that our CABs can maintain the incredibly high-quality professional service that they provide for all our constituents."
The issue of fact against law was also well summarised by another Conservative MP..
Robert Buckland "I share the concerns expressed by my hon. Friend the Member for Totnes (Dr Wollaston) about the position on social welfare. I listened carefully, as I said in an intervention, to what the Secretary of State said about the issue of fact versus law. In my experience, which is in a slightly different context, as a criminal practitioner, I have found that the two very often come together. A person does not come through the door of the citizens advice bureau, the law centre or the local practitioner saying, “I am a problem of fact” or, “I am a problem of law.” They come as individuals with a particular issue that needs untangling by somebody with expertise."
In the light of the uncertainty which would revolve around defining fact against law (I share the view that the two simply cannot be separated) and the element of doubt as to how secondary legislation would look in terms of its practical application, I was pleased to see Lord Bach move the following amendment in to Monday's debate on the 23rd April in the House of Lords.
Lord Bach's amendment for welfare benefits
Schedule 1
LORD BACH
LORD BACH
Lord Bach to move, as an amendment to the motion in the name of Lord McNally not to
insist on Amendment 168, at end to insert—
“but do propose the following amendment in lieu—
“(1) Civil legal services for an appeal to a first-tier tribunal, in respect of a social welfare decision relating to a benefit, allowance, payment, credit
or pension under—
(a) the Social Security Contributions and Benefits Act 1992;
(b) the Jobseekers Act 1995;
(c) the State Pension Credit Act 2002;
(d) the Tax Credits Act 2002;
(e) the Welfare Reform Act 2007;
(f) the Welfare Reform Act 2012;
(g) the Vaccine Damage Payments Act 1979;
(h) Part 4 of the Child Maintenance and Other Payments Act 2008;
and
(i) any other enactment relating to social security.
(2) For the purposes of sub-paragraph (1), civil legal services includes
independent advice, assistance and representation.””
So, the amendment being moved by Lord Bach will cover welfare benefit work up to first - tier tribunal level. It is essential that people press their peers to vote for this amendment (made in lieu of 168) if we are retain legal aid funding for CAB/Advice agencies. The more predominant ground upon which it is best advanced is probably best argued by citing examples of the savings it would provide - rather than the cost.