An army of welfare benefit specialists....
Are incensed by Ken Clarke's appalling lack of knowledge of benefit appeals!Let's look at the QC's argument....
Line by line...Was Ken Clarke reckless?Ken Clarke readily admitted that any attempt to define a point of law in a first - tier benefit appeal would amount to a 'reckless' act on his part. He readily admitted that any attempt to make a definition would be off the 'cuff'. Why was he even talking about making 'off the cuff' judgements when he clearly should have considered the issue carefully before deciding to disagree with the Lords' upon their amendment? It's an admission that he had made no attempt to look at the issue at all.
Yet this was the very issue which was at the crux of the debate concerning Tom Brake's amendment and by default its reference to Baroness Doocey's amendment (168) which was voted for with such force in the House of Lords when they picked the bill to bits in carefully considering whether legal aid was appropriate in the lower tribunal. Ken Clarke has shown himself to be nothing short of reckless in his disagreement with the Lords because he clearly had formed no clear evidenced based opinion as to whether issues of law ever arose in lower tribunal appeals. Accordingly he based a decision to disagree with the Lords on a total lack of comprehension over the point at issue; he was reckless.
As a Queen's Counsel, Ken Clarke should have a clear understanding that fact & law arrive together, he would know from his days as a criminal barrister that proceedings cannot be entirely judicial. In a Crown Court, a jury is specifically there to consider the 'facts' whilst the judge directs upon issues of law. In a social security benefit appeal both issues of law and those of fact are decided by the judge or panel members.
On his own admission Ken Clarke had no idea as to whether or not issues of law arose in a benefit appeal, he conceded it would be reckless to make such a judgement, so by default he was reckless in disagreeing with the lords upon an issue over which he had admitted he had no clear understanding.Was his statement of the work MP's carry out in their surgeries correct?Ken Clarke had made no attempt to gather any evidence as to precisely how much and what kind of work MP's carry out in their constituent surgeries in relation to the benefit enquiries. Ken Clarke did not comment on advice provision within this home constituency, but if we assume it is reasonably well served it makes me wonder why people would have felt the need to approach their local MP. Ken Clarke would have had every opportunity to come before the House of Commons and produce evidence over how many cases he (or more likely his caseworkers) had dealt with, none of his statements were evidence backed. The kind of questions raised by his statement are obvious:
(A) Was Ken Clarke really saying these 'enquiries' were simple issues of entitlement?
(B) Or was he saying people were approaching MP's in need of real need in sorting out their appeal cases in the first - tier?
(C) Or (more likely) was it a question of people complaining to their MP's about the problems they face in terms of the numbers of escalating problems more commonly associated with ESA assessment?
We really should not let Ken Clarke off the hook on this one. We should ask him either via a Freedom of Information request or a Parliamentary question to clarify his evidence base and to let us know how many presenting issues his constituent surgery has dealt with - with full details over the (a) nature of enquiry (b) level of help provided & (c) outcome achieved & the measurable cost. We should go a step further and ask for full disclosure from Ken Clarke as to how he formulated an opinion of the work being carried out by constituent MP's in relation to this area of work - I'm sure many would be only too happy to let him have details of their workload.
Was Ken Clarke contradicting himself?Yes, this clearly was a statement which was completely muddled and lacked comprehension. On the one hand Ken Clarke talks of the 'huge complexity of social social security regulation' and yet on the other he talks of no issue of law arising. I can think of no greater contradiction in terms, where ever there exists regulatory complexity there will be all the more scope for resultant issues of law.
Ken Clarke gives the game away when he says that sorting out the regulatory complexity contained within social security law is an issue better sorted out by a Member of Parliament than by a legally qualified family solicitor. This is far more than an 'academic' point - it highlights Ken Clarke's complete disregard for regulations which stand in the way of his government's agenda. Within the contradiction Ken Clarke exposes the point; when the rules do not suit they become 'non - legal' in issue - effectively telling us all that they are best sorted out by politicians. Is there a single welfare benefit specialist in the country who would have any confidence that Ken Clarke would get to grips with even a relatively 'straightforward' benefit appeal? I have this vision of him throwing away the regulatory rulebook as he sits in his judgement and tells prospective claimants - "I'm awfully sorry to tell you that you don't appear to be entitled". I only hope constituency surgeries have suitable indemnity insurance against the potential claims they may face for negligent advice.
Ken Clarke knows only too well that regulations are legally bound. This statement demonstrates how much he dislikes regulation and furthermore it takes us into dangerous territory if he sees that it is politicians rather than lawyers who are best placed to fix it. Let us not forget it was Ken Clarke's government which put in place the regulatory framework for Disability Living Allowance & Incapacity Benefit; since then we have seen the need for a huge preponderance of case law aimed at better defining its interpretation. Ken Clarke was not only contradicting himself, he was contradicting the need for legal solutions which arose out of badly drafted law created by his own government. Is 'general help' really what is required?Of course it is not. Why on earth would you want people who have only a limited 'general' understanding of a complex set of rules helping people in the course of proceedings in a tribunal which tries to unravel the complexity? Ken Clarke loses all credibility by saying all claimants require is a person with a limited understanding to help them through a complicated maze, it's like the blind leading the blind. If a fully qualified family lawyer cannot unravel the complexity so often found within social security law how can a generalist adviser?
In truth, Ken Clarke knows that large numbers of benefit claimants are achieving high success rates in overturning benefit decisions in first - tier tribunals. We know from our research that most of those who succeed have been helped by legal aid specialists. The national success rate is around 40% in Employment & Support Allowance appeals which increases to 78% when people are assisted by a specialist. Employment & Support Allowance has some of the toughest rules in terms of determining eligibility and what our statistics are showing is that far more people are incapacitated than government wants to concede to.
There is also an element of, if I may be so blunt, snobbery over Ken Clarke when it comes to him having to concede that the specialists who work within the advice sector are not in his eyes 'lawyers'. With all due respect nor are the vast majority of the decision-makers who make these statutory decisions. Welfare benefit specialists are professionals who have a vast array of experience in social security law, they need to be fully accredited in order to meet the legal aid supervisory standard as competent caseworkers. the Access to Justice Act introduced for the first time the concept of 'legal help' as an innovative commodity to assist people in easier access to straight talking professionals who could break down some of the hitherto Latin speaking complexity and explain things more easily to clients in easier to understand language. The use of layman's terms should never be construed as proving generalist advice - it is simply making the law more easily understood by people who battle to understand the complexity.
Ken Clarke is a classic example of the overtly litigious kind of dinosaur lawyer who would happily incur enormous state expense in arguing for endless hours the 'points of law' debates of which he is so fond. What he is doing here is deny people access to justice by cutting off all avenues to specialist help in a sinister attempt to secure his government the less positive outcomes he wants to see secured in social security legislation. It's why his government is cutting off access to specialists and its why its going a step further by ensuring all claimants go through a process of 'mandatory reconsideration' before claimants can even get access to a social security benefit tribunal. To deliberately couch specialist advice as generalist is not only demeaning to those who provide it, it is wilfully allowing government to cheat a way into saying people are not disabled when all of the results we are achieving are showing precisely the opposite.
Regulatory interpretation is law and that's a factIt is this one which really takes the biscuit, let me tell you why..
The government & a whole host of lawyers are in a complete spin over a date relating to
Abu Qatada's legal proceedings.
April the 16th or the day after.
Theresa May and the government are out to prove
the deadline expired on April the 16th.
Abu Qatada's lawyers argue it was
April 17th
The rules need interpretation
The rules need a legal solution
We do not need to go in to the legal or moral issues over Abu Qatada to realise that it is issues of fact and regulatory interpretation which are so often part and parcel of any legal dispute. Both Sarah Wollaston & Robert Buckland were right to question Ken Clarke over a need to make something clear " justice is about fact". It is also a nonsense for Ken Clarke to claim that regulatory interpretation is not an an issue of law - a Queen's Counsel should know better. [/i][/color][/b][/size]
When it comes to arguing a point
Ken Clarke QC
Is simply talking nonsense
