Welfare Benefit Appeals - a need for justice!

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In the winding up stages of LASPO Ken Clarke promised a serious look at how to resolve what he saw as 'points of law' cases in the First Tier Tribunal which could be funded by legal aid.

It followed hours of debate in both the House of Commons and House of Lords.

Here:

Prior to Ken Clarke's meaningless promise Tom Brake (Liberal) & others had put forward an amendment to the Commons which he subsequently withdrew.

After months of waiting the coalition has come up with a solution which is useless to an escalating problem.


The problem

From 1st April 2013 there will be no legal aid funding for any advice centre or law centre for a welfare benefit enquiry unless it involves taking a case to the Upper Tribunal.

Links to appeals



The Promise

Mr Clarke: I have obviously failed to make myself completely clear, so I will try again. As it stands, the Government’s amendment in lieu applies only to upper tribunals. The right hon. Member for Carshalton and Wallington and others argue that something similar should be available in lower tribunals and in other cases. I have undertaken to explore whether we can find an alternative method of identifying those limited numbers of cases and getting them certified when they involve a legal principle. As the matter has been raised at this stage of the debate, we have to fall back on saying that we would use our regulation-making powers through a statutory instrument, because we could not possibly draft primary legislation to cover it in the few days that we have left.

The proposed solution

"The vast majority of Tribunal appeals do not involve points of law, but the Government said that where these could be identified by an independent person it would consider making legal aid available.


Having considered the matter carefully, the Government considers that a system of independent verification is not feasible. But it will make available, subject to merits and means tests being satisfied, legal aid in the form of advice and assistance for those welfare benefit cases in the First-tier Tribunal where the First-tier Tribunal has itself identified an error of law in its own decision."


The Motion





House of Lords Business

Monday 26 November 2012 at 2.30pm

Motions relating to Delegated Legislation

www.publications.parliament.uk/pa/ld/ldordpap.htm

For hearing 3rd December 2012 House of Lords

"Lord Bach to move that this House declines to approve the draft Legal Aid, Sentencing and Punishment of Offenders Act 2012 (Amendment of Schedule 1) Order 2012 as it does not fulfil the undertaking given by Her Majesty’s Government on 17 April; and will mean claimants, including a disproportionate number of disabled people, will not receive legal help on a point of law in first-tier tribunals relating to welfare benefits thus denying them a fair hearing on point of law cases."

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The concessionary 'promise'







4 Hansard April 17 2012 Extracts related to amendment 168



Kenneth Clarke: ..."Lords amendment 168 seeks to bring the majority of welfare benefits matters into the scope of legal aid funding. Lords amendment 169, along with Lords amendment 240 and amendment (i), tabled by my right [17 Apr 2012 : Column 224] hon. Friend the Member for Carshalton and Wallington (Tom Brake) to our amendments in lieu, would have similar effects, so I will discuss them together shortly.


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 are required, and it should be financed by the taxpayer on legitimate grounds.


Stephen Timms (East Ham) (Lab): In cases, of which there are many, where people seek advice from citizens advice bureaux to help them prepare a review or an initial appeal, is it not in everybody’s interests, including the Government’s, that they should be able to get some advice before going forward with their review request?


Mr Clarke: I value citizens advice bureaux as highly as the right hon. Gentleman, and ever since the Bill was introduced we have said that we will come forward with proposals to improve the support given by the Treasury. As I have said, at the time of the Budget there was an announcement, which was not much noticed at the time, of £20 million a year to be made available for voluntary advice.


For most citizens advice bureaux, legal aid is not the biggest source of their funding, and some do not get any legal aid funding at all. Their advice is very valuable general advice to people with a combination of debt, housing and every other problem; it is not specifically legal advice in most cases. Our Department is not the biggest Department that contributes to such bureaux; the Department for Business, Innovation and Skills has the biggest budget, for debt advice and other forms, and I think that it has ring-fenced its budget and still provides funding.


Most citizens advice bureaux have lost a lot of money because local government funding has been cut quite severely, and the Government are producing money from the Treasury to compensate in part for that, so we—not my Department; the Cabinet Office—are now distributing that £20 million to ensure that such valuable general advice is still available. What we cannot do is [17 Apr 2012 : Column 225] start inventing legal aid scope, or fail to narrow legal aid scope, as a roundabout way of maintaining funding for citizens advice bureaux, many of which do not receive legal aid funding now—giving them funding that is spent on general advice as much as on legal advice. Of course, the more we extend the scope to help the citizens advice bureaux, which are busy lobbying the House, the more we also help professional lawyers, who also qualify for all the legal aid scope that we are happily enlarging.


Yvonne Fovargue: The citizens advice bureaux that are so busy lobbying are actually lobbying on behalf of their clients. Some 77% of the funding being removed from the scope of legal aid is going not from solicitors’ firms, but from citizens advice bureaux and law centres—and from specialist legal advice. The Legal Services Commission will not provide the money, which I remind the Secretary of State is £160 for a legal aid case at the early stage of a welfare and benefits case, but it prevents the case from becoming much more expensive later.


Mr Clarke: The hon. Lady’s experience of citizens advice bureaux greatly exceeds my own, but I am pretty certain that fewer than half of such bureaux receive any legal aid funding at all. I have not sought to deny the financial problems of citizens advice bureaux, but we cannot solve them by being so generous in scope with legal aid when the issues involved in most welfare cases are not legal problems. What people require in these difficult times is general advice on a general combination of problems from which they suffer.







Tom Brake (Carshalton and Wallington) (LD): On points of law, I welcome the concession in relation to upper tribunals and welfare benefits, but can the Justice Secretary confirm that the Government intend to ensure that all cases in which points of law are in contention, whether in the upper or lower tribunals, are funded through legal aid? If that is his intention, what will he put in place, either in the Bill or in some other way, to ensure that it happens?


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 (17 Apr 2012 : Column 226) 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. We already have discussions under way with the Department for Work and Pensions, whose help we will also require, to see whether we could have some equivalent—whereby somebody other than the claimant or their lawyer certifies that a point of law is involved—and provide legal aid. I suspect that at this stage of the Bill’s passage through Parliament it is far too late to start introducing primary legislation in the House of Lords, but we have retained for ourselves powers to amend the scoping through regulation, so if we could solve the problem, we could bring something forward through statutory instruments. We are quite open to the argument for ensuring that we have legal representation when there is a legal issue that we cannot expect a lay person ordinarily to argue.


Mr Llwyd: I follow the right hon. and learned Gentleman’s logic on that, but surely if the point of law is a good one in the upper tribunal and all the way up to the Supreme Court, it is equally good in the first tier, but if the case is unrepresented in the first tier, it is not going to go anywhere else.


Mr Clarke: I should like to see whether we can devise, with the help of the DWP, my right hon. Friend the Member for Carshalton and Wallington and anybody else, a system whereby we identify in the lower tribunal such issues that involve a legal issue. We think that the number is comparatively small, because it is not the business of lower tribunals normally to find themselves arguing points of law, as they normally argue points of fact and of regulatory interpretation, but we will work on the matter, and if we can devise such a system, we undertake to respond as my right hon. Friend asks me to.


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 (17 Apr 2012 : Column 227) support that he talks about. May I, however, clarify two things? Will any such measure apply to a matter of law and to judicial review when there is a proper matter of law—and, in those cases, not just to social security but throughout the tribunals service? When the agency turns down somebody’s application and that person wins their appeal to the tribunal, there absolutely has to be a parity of arms at a further stage of appeal if the state appeals again. The applicant is there not because they want to be there, but because the state or the agency has sent them there.


Mr Clarke: On the right hon. Gentleman’s first point, I can assure him that we are continuing legal aid in all cases involving judicial review, so legal aid is available to someone who is trying to have a welfare decision judicially reviewed. That applies to every kind of judicial review, because we do not think that the Government or a public body should be resisting a claim about abuse of their powers from a litigant who cannot get legal advice. This is not an easy concession to make, because quite a lot of people who seek judicial review are not instantly popular with all sections of society, but we still give them legal aid.


On the other matter involving situations in which the state is busily arguing against a successful appellant that some kind of law is involved, I will add that to the list of things that we are studying with the DWP to try to identify whether, in cases where the state thinks that it is worth arguing about the interpretation of something, the litigant should be able to do so as well.


Mr Robert Buckland (South Swindon) (Con): I am listening to my right hon. and learned Friend’s arguments with great care, but I am still puzzled about the unavoidable problem of the ability to work out what is a legal issue as opposed to a merely factual one. Fact management and legal issues often come hand in hand, and they are often best handled by a lawyer. I worry that we are making an artificial distinction, and that if, as he is suggesting, we are to rethink a number of issues raised by Members of the House, we should rethink this one too.


Mr Clarke: Of course there can be borderline cases, but, with great respect to my hon. Friend, in the vast majority of cases it is fairly obvious whether one is arguing a point of fact or a point of law. In an ordinary welfare case, the question will be whether someone is fit for work or not fit for work, or living or not living at a particular address. When a point of law arises whereby it is not a question of the complexity of the regulations but of the actual meaning of the regulations, somebody like a tribunal judge will know that instantly and think, “That is quite an interesting point of law that I’ve not had before; this will go to the upper tribunal and I will certify that it would be rather nice to have some guidance.” In the end, we have to leave it to tribunals themselves to decide on the facts. Some may be blurred, but by and large, in the vast majority of cases, they will be reasonably clear.


Andrew George (St Ives) (LD) rose —

Glenda Jackson rose —

Helen Goodman (Bishop Auckland) (Lab) rose—

17 Apr 2012 : Column 228

Mr Clarke: I will give way once more and then I must get on; otherwise I will take up all the time available myself.


Andrew George: Further to the points made by my right hon. Friend the Member for Carshalton and Wallington (Tom Brake), does the scope of the Secretary of State’s amendment exclude lower-tier tribunals, or can it be interpreted in such a manner that lower-tier tribunal appeals that are brought forward on the basis of evidence relating to a matter of law and then taken to an upper-tier tribunal might be included without the need for further regulations?


Mr Clarke: I have obviously failed to make myself completely clear, so I will try again. As it stands, the Government’s amendment in lieu applies only to upper tribunals. The right hon. Member for Carshalton and Wallington and others argue that something similar should be available in lower tribunals and in other cases. I have undertaken to explore whether we can find an alternative method of identifying those limited numbers of cases and getting them certified when they involve a legal principle. As the matter has been raised at this stage of the debate, we have to fall back on saying that we would use our regulation-making powers through a statutory instrument, because we could not possibly draft primary legislation to cover it in the few days that we have left.


Tim Farron (Westmorland and Lonsdale) (LD): Before the Secretary of State moves on, may I ask him to give us a time scale?


Mr Clarke: The amendment was tabled only at 6 o’clock yesterday evening, so we have moved quite quickly to get to where we are now. I suspect that the relevant officials at the DWP have not yet even been involved in discussing this. I cannot give a time scale, but we will move as rapidly as possible.


Glenda Jackson: The Lord Chancellor referred to a majority of cases. Citizens Advice says that the proportion of appeals that are upheld in work capability assessment cases, for example, rises from 40% to 90% when a legal adviser is involved. I am not saying that it will necessarily be about a point of law, to pick up the point made by the hon. Member for South Swindon (Mr Buckland), but there are occasions when a legal mind can clarify the situation. I do not think that the Lord Chancellor understands who the people are who go to appeal. He said that in domestic violence cases, they go to a solicitor. None of my constituents in that situation has a solicitor; they go to the CAB or to a law centre, many of which, in my constituency, are in grave danger of having their ability to provide those services reduced—


Mr Deputy Speaker (Mr Lindsay Hoyle): Order. The hon. Lady has had a good go at intervening three times. Could interventions please be shorter, because we have to get in a lot of other speakers who want to make points?

6.45 pm

Mr Clarke: The cases that the hon. Lady mentions do not depend on a lawyer. When the right hon. Member for Manchester, Gorton (Sir Gerald Kaufman) was sitting behind her in the previous debate, he said that in (17 Apr 2012 : Column 229) his experience as an MP, when one discusses the matter with somebody, one gets clarity on what the real point is and how they should present it. A general adviser can help to sort somebody out in going along to argue their case by telling them what is relevant and what is not and giving them some guidance on what they should get evidence of in order to pursue their claim. That is not the same as legal aid. That is why we are producing the money for Citizens Advice and other voluntary bodies to give general advice. It is no good claiming that it is all about legal aid. Some lawyers are better at this than others. Just a friend who is a good advocate can be adequate in marshalling a case that is being argued on appeal about a question of fact as to whether, say, somebody is able to go back to work.


Helen Goodman rose—


Mr Clarke: I give way for the last time.


Helen Goodman: It would help the House if the Secretary of State could tell us what he means by a point of law. Does he mean that it is a disagreement about the proper interpretation of the rules, or does he accept that it might be about whether the rules have been properly interpreted, which is not a dispute about facts?


Mr Clarke: It would be reckless of me to try off the cuff to make a tight definition of a point of law. It is about a situation where a particular question arises out of the interpretation of a regulation and there is no clear and binding precedent for exactly what the law should be when it comes to applying it to the set of facts involved, and it is then up to the tribunal judge to decide. Following the concessions that I have introduced about upper tribunal and Court of Appeal cases, the judge will certify that a point of law is involved in a case because he thinks that it is one in which the guidance of the upper tribunal or the Court of Appeal is required on what exactly the law will say that it means. That is what is meant by a point of law. We have made considerable concessions. No one is arguing about the vulnerability of groups of people who are arguing about their welfare benefits. The Bill is about how much money the taxpayer pays to how many lawyers. We are trying to concentrate on spending that money on paying lawyers for cases in which a lawyer is required to sort out a welfare benefit dispute. That is the basis on which our amendments were produced.

__________________________________________________

Fact v law

__________________________________________________




Brake backs down



Tom Brake: I thank the hon. Lady for her intervention. She makes a strong point that legal aid lawyers need to be available to provide legal aid advice. I hope that the Government will ensure that that is the case.


I would welcome some clarification about the timetable. My hon. Friend the Member for Westmorland and Lonsdale (Tim Farron), who is no longer in his place, intervened to ask for clarity about the timetable for reaching a conclusion on identifying lower tribunal cases that involve points of law and on how the certification process would work. I look forward to seeing how that will be resolved. I accept that the Justice Secretary’s proposal will not address all the complex welfare benefit cases to which Citizens Advice has referred. It has confirmed to me that it is working on some cases of general advice that are funded through legal aid. It acknowledges that there are already cases where there is no requirement for the work to be legally aided, or legal aid funded, in order for it to be completed.


Members may have looked at some of the case studies in the briefing from Citizens Advice, “Out of scope, out of mind”. For example, there is the Kelly case where her care needs were set out in detail in a three-page letter to the DWP appeals officer, but it was not immediately clear to me that there was a requirement for legal aid to write that particular letter, as it was suggested there was in the briefing. It acknowledges that there are cases where the issues are more about general advice, so the additional Government funding—the extra £20 million, or the £16.8 million this year, and the £20 million next year and thereafter—is welcome.


Of course I acknowledge that local authorities are cutting funding to their citizens advice bureaux, but I would ask all Members what pressure they are putting on their local authorities, which can make choices. It is clear that some have chosen to continue funding for their CABs, while others have chosen not to. Local authorities have some options on where to make the cuts. If some choose to support their CABs, which I welcome, others are choosing not to, which I regret.


Simon Hughes: I hope I am not pre-empting my right hon. Friend’s argument, but the other thing the Justice Secretary said that was welcome in respect of this part of the Bill was the commitment he gave that judicial review cases would be covered by legal aid. They are exactly the cases that people were most worried that there would be no support for. Here, legal aid is clearly necessary.


7.45 pm


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 with the undertakings that (17 Apr 2012 : Column 245) 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.


Mr Llwyd: That last comment winded me, because I fully expected the Liberals to vote on their amendment, particularly given the right hon. Gentleman’s performance in Committee—where he said absolutely nothing during the entire Committee stage.


I must say to the Lord Chancellor that I accept and am grateful for how he has moved on the definition of domestic violence, which is most welcome. On the gateway, things have greatly improved, too. The hon. Member for Maidstone and The Weald (Mrs Grant), who is greatly experienced in these matters, has made her speech, so I can curtail what I had intended to say. Suffice it to say that I think three years might be better than the two-year limit, but two years is still an improvement. In any event, this represents a great improvement on where we were just a few weeks ago—certainly a vast improvement on where we were in Committee. I hope that this will be a far fairer regime on domestic violence and on assisting the most needy in society.


As to the welfare benefit cases, the Government have now accepted the relevant amendment. Again, it is an improvement, but there is a lack of logic in saying that a second tier would be covered in respect of points of law for the Court of Appeal and the Supreme Court. Let us just face the fact that the number going to those two courts will be a handful in any year, if even that. The truth is that it would be far better to extend downward to ensure that where a genuine point of law is at stake —I am not sure how exactly we are going to measure it—it is only right that something should be done at the very lowest level. Again, the cases will be few and far between.


Since becoming a Member of Parliament, I have seen 200 or 300 benefit cases of various kinds before the tribunal—gratis, I have to say. It is necessary to put your ducks in a row and prove that the medical officer has been less than honest in assessing the needs of the individual. We heard one glaring example from the hon. Member for Newcastle upon Tyne North (Catherine McKinnell) earlier and I could provide many more. As I have said in this place before, the system is wrong because the people who do the tests are most keen on getting them through in 25 minutes and picking up their cheque—and that is that. I have seen some abominable cases. I remember one case in which a young lad was invalided out of the Air Force, having lost a leg and badly damaged a shoulder. He was alleged to be able to walk 100 metres in the given short space of time. That was absolute nonsense. He went to appeal, and in 10 minutes the tribunal said yes.


There are some cases where points of law are relevant. They are few and far between. The Justice Secretary said this evening that he will look to provide some cover there, and it is particularly important to include any points of law that arise lower down, as it were.


www.publications.parliament.uk/pa/cm201212/cmhansrd/cm120417/debtext/120417-0003.htm

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A massive thumbs down

To a useless piece of legislation!

WRITTEN MINISTERIAL STATEMENT


Tuesday 18 September 2012


MINISTRY OF JUSTICE

[/size]


Legal Aid Reform

The Parliamentary Under-Secretary of State, Ministry of Justice (Jeremy
Wright):


During Commons Consideration of Lords Amendments stage of the Legal Aid, Sentencing and Punishment of Offenders (LASPO) Bill, the Government undertook (17 April 2012: Column 226) to consider whether to extend legal aid for advice and assistance to welfare benefits cases in the First-tier Tribunal where these involved a point of law.


The vast majority of Tribunal appeals do not involve points of law, but the Government said that where these could be identified by an independent person it would consider making legal aid available.


Having considered the matter carefully, the Government considers that a system of independent verification is not feasible. But it will make available, subject to merits and means tests being satisfied, legal aid in the form of advice and assistance for those welfare benefit cases in the First-tier Tribunal where the First-tier Tribunal has itself identified an error of law in its own decision.


Under tribunal rules, when the First-tier Tribunal receives an application for permission to appeal, it must first consider whether to review its own decision. The Tribunal may only undertake a review of its decision if it is satisfied that there was an error of law in the decision. If the Tribunal reviews its decision, it may invite representations from parties as part of that review. Alternatively, it may take action as a result of the review (in effect, to change its earlier decision) without first giving every party an opportunity to make representations; in that case any party that did not have an opportunity to make representations may apply for such action to be set aside and for the decision to be reviewed again.


Legal aid will be available to assist appellants in these two situations: to make representations when invited by the Tribunal, and in relation to an application for action to be set aside and for the decision to be reviewed again where representations were not sought.


We intend in due course to lay an Order under section 9 of the Legal Aid, Sentencing and Punishment of Offenders Act 2012, for approval by each House, to reflect this position.


You can read the ministerial statement here via the Parliamentary link.

You can also read details on Hansard over the Justice announcement. The links clarifies the position on legal aid contracting for welfare benefits by the Legal Services Commission as follows:


The Legal Services Commission intends to begin a tender for welfare benefits work in 2013. The tender will cover the work described above, and advice and assistance for onward appeals on a point of law in the Upper Tribunal, Court of Appeal and Supreme Court as described in paragraph 8 of part 1 of schedule 1 to the Legal Aid, Sentencing and Punishment of Offenders Act 2012. One of the criteria for awarding contracts in this tender will be price competition.

The indicative timetable for the welfare benefits contract is:

Pre-Qualification Questionnaire Stage

February 2013

Invitation to Tender

May 2013

Contract Commencement

October 2013

Existing welfare benefit contracts are due to expire in March 2013. In order to ensure that advice and assistance will be provided for welfare benefit cases within the scope of legal aid, we will put in place appropriate interim measures from April 2013.[/i]

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Application for permission to appeal

38.—(1) This rule does not apply to asylum support cases or criminal injuries compensation cases.

(2) A person seeking permission to appeal must make a written application to the Tribunal for permission to appeal.

(3) An application under paragraph (2) must be sent or delivered to the Tribunal so that it is received no later than 1 month after the latest of the dates that the Tribunal sends to the person making the application—

(a)written reasons for the decision;

(b)notification of amended reasons for, or correction of, the decision following a review; or

(c)notification that an application for the decision to be set aside has been unsuccessful.

(4) The date in paragraph (3)(c) applies only if the application for the decision to be set aside was made within the time stipulated in rule 37 (setting aside a decision which disposes of proceedings) or any extension of that time granted by the Tribunal.

(5) If the person seeking permission to appeal sends or delivers the application to the Tribunal later than the time required by paragraph (3) or by any extension of time under rule 5(3)(a) (power to extend time)—

(a)the application must include a request for an extension of time and the reason why the application was not provided in time; and

(b)unless the Tribunal extends time for the application under rule 5(3)(a) (power to extend time) the Tribunal must not admit the application.

(6) An application under paragraph (2) must—

(a)identify the decision of the Tribunal to which it relates;

(b)identify the alleged error or errors of law in the decision; and

(c)state the result the party making the application is seeking.

(7) If a person makes an application under paragraph (2) when the Tribunal has not given a written statement of reasons for its decision—

(a)if no application for a written statement of reasons has been made to the Tribunal, the application for permission must be treated as such an application;

(b)unless the Tribunal decides to give permission and directs that this sub-paragraph does not apply, the application is not to be treated as an application for permission to appeal; and

(c)if an application for a written statement of reasons has been, or is, refused because of a delay in making the application, the Tribunal must only admit the application for permission if the Tribunal considers that it is in the interests of justice to do so.

www.legislation.gov.uk/uksi/2008/2685/article/38/made

Tribunal’s consideration of application for permission to appeal

39.—(1) On receiving an application for permission to appeal the Tribunal must first consider, taking into account the overriding objective in rule 2, whether to review the decision in accordance with rule 40 (review of a decision).

(2) If the Tribunal decides not to review the decision, or reviews the decision and decides to take no action in relation to the decision, or part of it, the Tribunal must consider whether to give permission to appeal in relation to the decision or that part of it.

(3) The Tribunal must send a record of its decision to the parties as soon as practicable.

(4) If the Tribunal refuses permission to appeal it must send with the record of its decision—

(a)a statement of its reasons for such refusal; and

(b)notification of the right to make an application to the Upper Tribunal for permission to appeal and the time within which, and the method by which, such application must be made.

(5) The Tribunal may give permission to appeal on limited grounds, but must comply with paragraph (4) in relation to any grounds on which it has refused permission.

www.legislation.gov.uk/uksi/2008/2685/article/39/made

Review of a decision

40.—(1) This rule does not apply to asylum support cases or criminal injuries compensation cases.

(2) The Tribunal may only undertake a review of a decision—

(a)pursuant to rule 39(1) (review on an application for permission to appeal); and

(b)if it is satisfied that there was an error of law in the decision.

(3) The Tribunal must notify the parties in writing of the outcome of any review, and of any right of appeal in relation to the outcome.

(4) If the Tribunal takes any action in relation to a decision following a review without first giving every party an opportunity to make representations, the notice under paragraph (3) must state that any party that did not have an opportunity to make representations may apply for such action to be set aside and for the decision to be reviewed again.

www.legislation.gov.uk/uksi/2008/2685/article/40/made

[nickd]

The Ministry of Justice







A silent injustice which will affect thousands...


Earlier in the year the Ministry of Justice presided over an injustice which very few will have heard about. Considerably more have been made aware over the outrage experienced by thousands of disabled and incapacitated benefit benefits claimants who have been being wrongly declared 'fit for work' by the private French firm Atos, a firm which was recently exposed on 'Panorama' and 'Dispatches' over the way they conduct government's 'Work Capability Assessment'. In 2010/2011 418,500 claimants appealed against decisions of the State which they considered unfair.


Of those who appealed the results were truly staggering.


Of particular concern are those who claimed 'Employment & Support Allowance' (ESA), it's the benefit which is subject to the highly controversial Work Capability Assessment: out of 176,567 ESA appeals cleared in 2010/2011 - 40% were successful.


Actually the 40% figure is a bit misleading - there's evidence to suggest it's much higher.


The way this is worked out is to look at the 40% who succeeded; it comes to 70,628 claimants (40% of 176,567).


The question you need to ask is why did they win their cases?


The answer explains why the Ministry of Justice have done something quite wicked, cruel and callous, it explains why they've done all they can to keep this from the newspapers and on television. It also explains why they've deliberately cheated thousands out of justice.


So lets talk figures and expose this for what it is. the starting point in this is the real success rate:

Yes that's right 80%, the true success rate could be twice as high as government tells us all. Given that government is already deeply embarrassed over the 40% success rate, a figure of 80% would place an even greater question mark over the way Atos are conducting the Work Capability Assessments. To put this in its real context the 80% success rate means:

8 out of every 10 claimants who appeal are
potentially being wrongly
assessed by Atos.

So how come I'm saying 80% and government is saying 40% you may ask? Well it's not just me who stands by the higher success rate; although it is one which I see mirrored in the results of the cases we take to appeal. It's also a figure widely reported by advice agencies across the nation, it went unchallenged in the House of Lords' and has been used by Citizens Advice and quoted in numerous press articles. Indeed one organisation, Maidstone CAB quoted a success rate of 95%.

But is it right?

Well here's the maths: we know that the Legal Service Commission granted 130,000 'matter starts' for welfare benefit cases per year in soon to be abolished contracts for benefit claimants to get help with their benefit related matters under the scope of the legal aid scheme. Every agency who has a welfare benefits contract will tell you " we're inundated with Employment & Support Allowance appeals ". In my own office it's well over 50% of our workload and agencies elsewhere are all giving similar figures. So let's take 50% of the total number of 130,000 legally aided cases per year and see what we come up with:

65,000 ESA appeals

Think about it.

70,628 successful ESA appeals

65,000 Legally aided ESA appeals

You can see the obvious association. It makes the claim that 80% of appeals are successful with legal aid a credible one. Out of the 65,000 appeal cases at a success rate of 80% (52,000) resulted in the claimant being granted their ESA and 20% (13,000) resulted in an unsuccessful outcome.


It also makes it quite probable that of the remaining (non - legally aided) successful ESA claimants a fair number would have been helped with their appeals, most probably by other welfare rights organisations. You work this out out by taking away the 52,000 from the overall number of 70,628 successful appeals which leaves you with 18,628

18,628 non Legally aided ESA appeals
which also succeeded

The point is that be the evidence suggests the vast majority were legally aided. It is also strongly suggestive that the remaining non-legally aided claimants were assisted in achieving a successful outcome.


So now let's look at what the Ministry of Justice has done.


Didn't listen to 5,000 responses

Didn't listen to a house full of lords

Invoked financial privilege

Made a promise

Broke a promise

[nickd]

Justice: Legal Advice Question

House of Lords'

27/11/2012 - 2.54 pm

Asked by

Lord Bach


To ask Her Majesty’s Government what plans they have to enable people to receive legal advice for social welfare law problems once they are not able to receive legal aid for that advice after 1 April 2013.


The Minister of State, Ministry of Justice (Lord McNally):

My Lords, it is important to realise that legal aid has been retained for the highest priority social welfare law cases and we will continue to spend approximately £50 million a year in this area. We are also putting in place a new robust referral process to support relevant clients to resolve their problems by signposting them to suitable alternatives.


Lord Bach:


My Lords, I thank the Minister for his reply. Does he agree that a fundamental test of any legal aid system is whether it gives access to justice to the poor, the disabled and the marginalised? If it does not do that, what is its point? It is agreed by everyone that many hundreds of thousands of our fellow citizens will be deprived of legal help and legal advice from 1 April next year—rightly named All Fools’ Day. Does he further agree that for this to happen at all, let alone in the middle of radical changes to our welfare system, is a disgrace and is certain to lower the reputation of our whole legal system?


Lord McNally:


My Lords, I recall some of those points being made during the course of the LASPO Bill. I rejected them then and I reject them now. We are continuing to spend a good deal on legal aid in this area, as I have pointed out, and we will be bringing in new measures to support advice services. Many of the areas covered are for advice rather than legal advice and we believe that if we can put in place proper advice services we can cover many of the fears that the noble Lord has raised.


Lord Marks of Henley-on-Thames:


My Lords, given that Citizens Advice has a wealth of experience in the area of social welfare law and, importantly, that it is not limited to giving legal advice but can also advise individuals in areas such as debt management, will the Government keep the funding of Citizens Advice under review to ensure that it can continue to provide its valuable and high-quality service?


Lord McNally:


My Lords, I pay tribute to noble Lords on all sides of the House who, during the course of the LASPO Bill, championed the cause of Citizens Advice and other advisory services. The Government are looking at the whole advice sector—the Cabinet Office has taken on that responsibility—and, in the mean time, the Government have put forward an advice service transition fund, worth £65 million over the next two years, to help promote collaboration and best practice in this sector.


Lord Beecham:


My Lords in 2011-12 the Newcastle CAB advised on 8,000 benefits problems. It has now lost £150,000 of government funding and three and a half posts, including its specialist welfare rights adviser. Gateshead CAB has lost £500,000. What advice can the Minister give these and other hard-pressed bureaux about how they can beat the rising demand for welfare law and welfare rights advice?


Lord McNally:


I suppose that I can only give those in the voluntary sector the same advice as was given in my own department, which has had to take a 23 per cent cut in services. The reality, which it seems difficult for the Opposition to take in, is that we are all a lot poorer than we thought we were and a lot organisations are having to reorganise to be effective. As I said, we have set aside £65 million over the next two years—and I have not even mentioned the £25 million to which I used to refer during the course of the LASPO Bill as the £65 million is new money. We appreciate the benefit of Citizens Advice and we want work with it so that it can carry on its useful work.


Lord Mackay of Clashfern:


My Lords, can the Minister say what is the outcome of the discussions that were being held in relation to legal advice centres—not only advice but legal advice centres, of which there is a network—as a valuable way of giving legal advice economically?


Lord McNally:


We continue to support the concept of legal advice centres, but they too have had to make some tough decisions in these circumstances. I hope that we can retain a good network, but we have had to make tough decisions in this area.


Lord Elystan-Morgan:


The Minister says that we are poorer, but we are not poorer. When legal aid was established immediately after the Second World War, we were absolutely skint. We had to negotiate a crippling American loan. The economic situation we are now in is infinitely better than it was then. Why is legal aid being sacrificed on the altar of economic need?


Lord McNally:


Legal aid is not being sacrificed on any altar. I pay tribute to the foundation of legal aid in 1948, but by the time we came into office, the legal aid budget was over £2 billion and the outgoing Government were already planning to cut it. I want to make sure that we maintain a legal aid system that will remain one of the most generous in the world and focus it on the most needy.


www.parliament.uk/business/publications/hansard/lords/todays-lords-debates/read/unknown/58/