Post by nickd on Jul 2, 2012 22:29:55 GMT 1
Let us not forget
We have some 'unfinished business' with the Ministry of Justice.....
Over 5000 responses were sent to the Ministry of Justice at their offices in Petty France in London in response to their consultation paper on the Legal aid, sentencing & punishment of offender's bill and you know what? Those of you who spent hours like I did putting together intelligent responses needn't have bothered; for we have not seen one iota of evidence which convinces us any of them were even read let alone considered. What we know is that almost all 5000 responses from all manner of highly respected respondents were overwhelming against proposals to slash social welfare legal aid by £350 million a year to help government achieve 'cost efficiency' savings. But it's all water under the bridge, because to quote Lord Bach who led the opposition against the passage of the bill through the House of Lords, the bill was 'wicked'; I would say rotten to the core. Regrettably, despite fierce opposition in the House of Lords who voted for no less than 14 amendments to this truly awful piece of legislation it went back to the House of Commons who overturned almost all of them under the dubious grounds of 'financial privilege' earlier this year; it was a dark day for hundreds of advice agencies who provide essential social welfare legal advice in crucial areas of much needed advice in areas such as debt, employment, welfare benefits, housing & family. The impact of this will be felt most severely next year when advice centres such as the CAB I work for are no longer able to provide specialist advice.
I've written reams on this forum about welfare reform, but people still just don't get it, they don't get the work we do or the reason we are so necessary as government crash lands its perilous welfare reforms down upon millions of individuals who will sustain grief and torment. At a meeting room full of parents with children having special education needs last week I asked them with a show of hands to let me know how many of them had heard of Government's answer to welfare benefit complexity - the 'Universal Credit'. I was horrified to see no more than three hands go up; why? - because I happen to believe these innocent victims will all be casualties of what I genuinely believe will be Universal Chaos. Some of these casualties will find themselves suffering badly from the head on impact of what I still believe will be one almighty 'Welfare Reform Car Crash'. The Ministry of Justice has to stop this farcical pretence that the complexities which we see in welfare benefit related enquiries and which will multiply significantly can be solved by well meaning voluntary generalist advisers found working for nothing within the advice sector. Government is simply being ridiculous in its assumption that the complexities which bring thousands of claimants into dispute with the Secretary of State are all issues of 'fact' which can be settled over a cosy telephone chat with one of the DWP's decision - makers or if worse comes to the worse in a user friendly tribunal.
So far the Ministry of Justices' help to claimants appealing for their Employment & Support Allowance has extended to a factually inaccurate 'self help ' video which we ripped apart right here on Mylegal back in March of this year. The video has been condemned by many welfare benefit specialists although some people seem to think it has a constructive purpose; the Ministry of Justice has recently pulled the plug on it so those of who want a peep will be out of luck. The fact is that of around 70,000 who won their Employment & Support Allowance (ESA) appeals back in 2010/2011 many would have been helped by legal aid welfare specialists. We know this because about 50% of our case load is taken up with those facing a dreaded 'ESA' appeal. This tallies up with half of the 130,000 people helped by legal aid welfare benefits specialist in an average year. We've done the maths and can point you to the enormous cost of these appeals in an article which we prepared to help our case for welfare benefits legal aid to continue to be available in the first tier tribunal; you can check out our research for amendment 168 in the LASPO debates in our article which tells you how much 'we save the State'.
What no one can deny is that out of those who appeal for Employment & Support Allowance around 40% end up winning their cases, our research shows that of those we provide with specialist help around 80% are successful at appeal, this is why we firmly believe that a huge degree of erroneous decision-making by the Secretary of State remain a huge cause for concern. What is just as disturbing is how government is totally ignoring the fact we are identifying thousands of Employment & Support Allowance appellants who are entitled to support via the DWP's WORK programme. We identify far more long term incapacity related claimants as having 'limited capability for work' by our excellent work in presenting our client's case than the DWP's Work programme providers are managing to attach to their 'flagship' programme. Our research shows that out of around half a million out of work claimants those with an incapacity benefit related history only account for a small percentage of those attached. I find it absolutely astonishing that government can pay providers £400 just to 'attach' claimants to the Work programme and pay £109 for one interview at the Jobcentre; whereas they won't pay us as highly experienced specialists a derisory fixed fee of £150 for often up 6 hours or more in working tirelessly to prove our clients need the support of the Work programme!
What we need to do is shout a little louder, well a lot louder about the work of welfare benefit specialist, the CAB launched a social media initiative on Twitter under the hash tag #CABLive, it was an ideal opportunity for benefit specialists to tell people via social media about the work we do but few took up the opportunity. In an attempt to portray some of the work I carry out for my own organisation at South Hams CAB I 'tweeted' a run down of the week from the perspective of a benefit specialist. The reason why all this is important is whilst LASPO has been shamefully enacted into the disaster it will become, we are not done with welfare benefits legal aid yet. Lord Bach successfully moved an amendment (169) in the House of Lords' which allows welfare benefits to remain in scope for work done in the Upper Tribunal. Although Baroness Doocey's amendment 168 was passed by the Lords' it was then rejected by the Commons. Amendment 168 provides for legal aid for welfare benefits work at up to first - tier tribunal level. The position in the debating stages was that Liberal Democrat Tom Brake put forward a substitute amendment in the House of Commons which whilst not being perfect was a step in the right direction. However, he subsequently withdrew it upon a promise made by Ken Clarke to consider suggestions as to how this could be resolved in the regulatory stages.
However, Ken Clarke's promise was preceded by a rather ludicrous suggestion that any Member of Parliament could resolve a welfare benefit problem and he went on to further complicate this by a frankly ridiculous contention that legal aid should only be available in a welfare benefit lower tribunal case if it involved a 'point of law'. Both Conservative MP's Robert Buckland and our own constituent MP Dr Sarah Wollaston set him straight on how benefit appeals invariably involve issues of 'fact'. It is fair to say I had spent a fair amount of time showing our own constituency MP cases to illustrate the legal nature of the work we do in the first tier tribunal; I thinks she has been persuaded and did not vote with her government when they rejected legal aid for this essential work in benefit appeal cases. Ken Clarke makes no sense over his remarks about issues of fact not being law when his own government put a legal argument to the European courts over an issue as simple as a date. The date in question was connected with a case involving the deportation of Abu Quatada. The matter of 'fact' which needed to be worked out was whether an appeal deadline had passed on either April the 16th or 17th of this year; - it transpired that Theresa May was in the wrong. That the matter was an issue of fact didn't stop the government spending huge amounts of money on arguing this simple issue of fact out by lawyers. Ken Clarke makes no sense in his argument that issues of fact are not issues which require the intervention of legal interpretation. How many times do we as benefit specialists have to refer to issues of interpretation of fact amongst case law when researching arguments which support our clients case in the first tier tribunal? A typical example would be how we define such issues in the fluctuation of a claimant's disability or how we define whether someone is virtually unable to walk in order to qualify for their higher mobility payment of Disability Living Allowance.
Thus there are issues of fact which require a legal degree of expertise in working out whether it can be argued that a claimant meets a regulation by working out the interpretation from established case law. What's the point of Upper Tribunal precedent if welfare benefit specialists are disabled from arguing how it applies in the first - tier tribunal?
However, the more common legal issues are related to the complex array of regulations pertaining to a wide range of different social security enactments as well as statutory instruments. Clearly there are issues of law in the first - tier tribunal or we would not have the need for a judicial tribunal to decide them. It stands to reason that if an appeal can only be made to the Upper Tribunal on a point of law then the issue of law must have arisen in the first - tier tribunal; it is patently obvious that the lower tribunal deals with law all the time.
What we now need to do is gear up for the regulatory stages of LASPO and make sure we retain legal aid for work up to the first - tier tribunal in welfare benefit cases, we simply cannot allow government to throw away the rule book and let our client's lose their entitlement because they have no access to a welfare specialist who can use their extensive knowledge of the law (including the Tribunal's procedural rules) to argue the case. In short the Secretary of State must be held to account by way of proper judicial challenge.
In this article we are going to take a look at some of the legal issues which arise in the first tier tribunal as we start collecting evidence based examples of the continued need for legal aid in benefit cases. We would particularly like to hear from welfare benefit specialists with examples of specific current legal issues and potential ones which will arise out of welfare reform.
In the next post there are examples of some of the legal issues I see on a regular basis in the first - tier, let's try and build on this by citing case specific examples.....
We have some 'unfinished business' with the Ministry of Justice.....
Over 5000 responses were sent to the Ministry of Justice at their offices in Petty France in London in response to their consultation paper on the Legal aid, sentencing & punishment of offender's bill and you know what? Those of you who spent hours like I did putting together intelligent responses needn't have bothered; for we have not seen one iota of evidence which convinces us any of them were even read let alone considered. What we know is that almost all 5000 responses from all manner of highly respected respondents were overwhelming against proposals to slash social welfare legal aid by £350 million a year to help government achieve 'cost efficiency' savings. But it's all water under the bridge, because to quote Lord Bach who led the opposition against the passage of the bill through the House of Lords, the bill was 'wicked'; I would say rotten to the core. Regrettably, despite fierce opposition in the House of Lords who voted for no less than 14 amendments to this truly awful piece of legislation it went back to the House of Commons who overturned almost all of them under the dubious grounds of 'financial privilege' earlier this year; it was a dark day for hundreds of advice agencies who provide essential social welfare legal advice in crucial areas of much needed advice in areas such as debt, employment, welfare benefits, housing & family. The impact of this will be felt most severely next year when advice centres such as the CAB I work for are no longer able to provide specialist advice.
I've written reams on this forum about welfare reform, but people still just don't get it, they don't get the work we do or the reason we are so necessary as government crash lands its perilous welfare reforms down upon millions of individuals who will sustain grief and torment. At a meeting room full of parents with children having special education needs last week I asked them with a show of hands to let me know how many of them had heard of Government's answer to welfare benefit complexity - the 'Universal Credit'. I was horrified to see no more than three hands go up; why? - because I happen to believe these innocent victims will all be casualties of what I genuinely believe will be Universal Chaos. Some of these casualties will find themselves suffering badly from the head on impact of what I still believe will be one almighty 'Welfare Reform Car Crash'. The Ministry of Justice has to stop this farcical pretence that the complexities which we see in welfare benefit related enquiries and which will multiply significantly can be solved by well meaning voluntary generalist advisers found working for nothing within the advice sector. Government is simply being ridiculous in its assumption that the complexities which bring thousands of claimants into dispute with the Secretary of State are all issues of 'fact' which can be settled over a cosy telephone chat with one of the DWP's decision - makers or if worse comes to the worse in a user friendly tribunal.
So far the Ministry of Justices' help to claimants appealing for their Employment & Support Allowance has extended to a factually inaccurate 'self help ' video which we ripped apart right here on Mylegal back in March of this year. The video has been condemned by many welfare benefit specialists although some people seem to think it has a constructive purpose; the Ministry of Justice has recently pulled the plug on it so those of who want a peep will be out of luck. The fact is that of around 70,000 who won their Employment & Support Allowance (ESA) appeals back in 2010/2011 many would have been helped by legal aid welfare specialists. We know this because about 50% of our case load is taken up with those facing a dreaded 'ESA' appeal. This tallies up with half of the 130,000 people helped by legal aid welfare benefits specialist in an average year. We've done the maths and can point you to the enormous cost of these appeals in an article which we prepared to help our case for welfare benefits legal aid to continue to be available in the first tier tribunal; you can check out our research for amendment 168 in the LASPO debates in our article which tells you how much 'we save the State'.
What no one can deny is that out of those who appeal for Employment & Support Allowance around 40% end up winning their cases, our research shows that of those we provide with specialist help around 80% are successful at appeal, this is why we firmly believe that a huge degree of erroneous decision-making by the Secretary of State remain a huge cause for concern. What is just as disturbing is how government is totally ignoring the fact we are identifying thousands of Employment & Support Allowance appellants who are entitled to support via the DWP's WORK programme. We identify far more long term incapacity related claimants as having 'limited capability for work' by our excellent work in presenting our client's case than the DWP's Work programme providers are managing to attach to their 'flagship' programme. Our research shows that out of around half a million out of work claimants those with an incapacity benefit related history only account for a small percentage of those attached. I find it absolutely astonishing that government can pay providers £400 just to 'attach' claimants to the Work programme and pay £109 for one interview at the Jobcentre; whereas they won't pay us as highly experienced specialists a derisory fixed fee of £150 for often up 6 hours or more in working tirelessly to prove our clients need the support of the Work programme!
What we need to do is shout a little louder, well a lot louder about the work of welfare benefit specialist, the CAB launched a social media initiative on Twitter under the hash tag #CABLive, it was an ideal opportunity for benefit specialists to tell people via social media about the work we do but few took up the opportunity. In an attempt to portray some of the work I carry out for my own organisation at South Hams CAB I 'tweeted' a run down of the week from the perspective of a benefit specialist. The reason why all this is important is whilst LASPO has been shamefully enacted into the disaster it will become, we are not done with welfare benefits legal aid yet. Lord Bach successfully moved an amendment (169) in the House of Lords' which allows welfare benefits to remain in scope for work done in the Upper Tribunal. Although Baroness Doocey's amendment 168 was passed by the Lords' it was then rejected by the Commons. Amendment 168 provides for legal aid for welfare benefits work at up to first - tier tribunal level. The position in the debating stages was that Liberal Democrat Tom Brake put forward a substitute amendment in the House of Commons which whilst not being perfect was a step in the right direction. However, he subsequently withdrew it upon a promise made by Ken Clarke to consider suggestions as to how this could be resolved in the regulatory stages.
However, Ken Clarke's promise was preceded by a rather ludicrous suggestion that any Member of Parliament could resolve a welfare benefit problem and he went on to further complicate this by a frankly ridiculous contention that legal aid should only be available in a welfare benefit lower tribunal case if it involved a 'point of law'. Both Conservative MP's Robert Buckland and our own constituent MP Dr Sarah Wollaston set him straight on how benefit appeals invariably involve issues of 'fact'. It is fair to say I had spent a fair amount of time showing our own constituency MP cases to illustrate the legal nature of the work we do in the first tier tribunal; I thinks she has been persuaded and did not vote with her government when they rejected legal aid for this essential work in benefit appeal cases. Ken Clarke makes no sense over his remarks about issues of fact not being law when his own government put a legal argument to the European courts over an issue as simple as a date. The date in question was connected with a case involving the deportation of Abu Quatada. The matter of 'fact' which needed to be worked out was whether an appeal deadline had passed on either April the 16th or 17th of this year; - it transpired that Theresa May was in the wrong. That the matter was an issue of fact didn't stop the government spending huge amounts of money on arguing this simple issue of fact out by lawyers. Ken Clarke makes no sense in his argument that issues of fact are not issues which require the intervention of legal interpretation. How many times do we as benefit specialists have to refer to issues of interpretation of fact amongst case law when researching arguments which support our clients case in the first tier tribunal? A typical example would be how we define such issues in the fluctuation of a claimant's disability or how we define whether someone is virtually unable to walk in order to qualify for their higher mobility payment of Disability Living Allowance.
Thus there are issues of fact which require a legal degree of expertise in working out whether it can be argued that a claimant meets a regulation by working out the interpretation from established case law. What's the point of Upper Tribunal precedent if welfare benefit specialists are disabled from arguing how it applies in the first - tier tribunal?
However, the more common legal issues are related to the complex array of regulations pertaining to a wide range of different social security enactments as well as statutory instruments. Clearly there are issues of law in the first - tier tribunal or we would not have the need for a judicial tribunal to decide them. It stands to reason that if an appeal can only be made to the Upper Tribunal on a point of law then the issue of law must have arisen in the first - tier tribunal; it is patently obvious that the lower tribunal deals with law all the time.
What we now need to do is gear up for the regulatory stages of LASPO and make sure we retain legal aid for work up to the first - tier tribunal in welfare benefit cases, we simply cannot allow government to throw away the rule book and let our client's lose their entitlement because they have no access to a welfare specialist who can use their extensive knowledge of the law (including the Tribunal's procedural rules) to argue the case. In short the Secretary of State must be held to account by way of proper judicial challenge.
In this article we are going to take a look at some of the legal issues which arise in the first tier tribunal as we start collecting evidence based examples of the continued need for legal aid in benefit cases. We would particularly like to hear from welfare benefit specialists with examples of specific current legal issues and potential ones which will arise out of welfare reform.
In the next post there are examples of some of the legal issues I see on a regular basis in the first - tier, let's try and build on this by citing case specific examples.....
