Post by nickd on Dec 8, 2012 8:36:30 GMT 1
Has the Laspo ticking time bomb
been dealt a fatal blow?
been dealt a fatal blow?
The Legal aid, sentencing & punishment of offender's bill (Laspo) was recently subject to more opposition as the House of Lords' considered the question of whether to reject a 'regulatory' amendment which would enable legal aid to be granted to benefit claimants fighting for their benefits before a 'first - tier' tribunal. the first - tier tribunal is a lower tribunal where the vast majority of benefit appeals are heard.
Up until the Coalition government took over in 2010 legal aid had funded CAB, law centres and solicitors to assist around 130,000 benefit claimants a year with their cases; many of them involving disputes against the controversial Employment & Support Allowance and the findings of the 'Work Capability Assessment'. The most recent appeal statistics show that we are on track to reach nearly half a million benefit appeals a year in tribunal rooms; the number of appeals has risen so dramatically that cases are now having to be dealt with in the much more formal & frightening setting of a County or Magistrates' Court.
The Coalition, following the comprehensive spending review of 2010 announced how £350 million a year had to be saved from the yearly £2.1 billion legal aid bill. Despite massive opposition and over 5,000 responses to a consultation exercise the coalition decided to withdraw all legal aid for welfare benefit cases when the bill was first drafted.
The coalition has shown little sign of giving way
Progress of the bill through Parliament has resulted in hours of debate which has been aimed at securing limited amendments in the pursuit of better access to justice for benefit claimants. The coalition has consistently voted against what the opposition say are very sensible and appropriate changes to the bill.
Laspo has been widely cited by many as a less than perfect piece of legislation but by far its biggest failing is the way it abolishes the right of an individual to hold the State to account. In all of the debating stages social welfare law has been the area which has attracted the most controversy because of the way it savagely cuts away at the right of the poorest in society to raise a properly presented argument over why the State should pay them what they say they are entitled to.
It's of significant importance to claimants because it involves getting government set amounts paid to them according to their individual circumstances, it can also mean being able to contest wrongly calculated overpayments which in many cases have been caused by 'official error' where it is the State who has paid out money by mistake. Many claimants feel it wrong that they are 'criminalised' by a system which allows a decision - maker to effectively say 'you are faking your illness, we don't think you are as disabled as you say you are'. Claimants have a right to contest these allegations but Laspo means hardly any of them will be able to get help funded by their accuser - the Secretary of State.
The coalition has shown no genuine intention to treat the 'report' stages of the bill as a proper listening exercise; their only 'real' concession has transpired to make legal aid available only in the difficult to reach and time consuming upper tribunal & higher courts for welfare benefits. These cases account for a very limited number which will do nothing to help the vast majority of claimants who have to battle their way through the lower (first - tier) tribunal system.
Labour Lord Bach and the shadow justice team with some support from a handful of Liberals has continually pressed for changes to get better access to justice rights for welfare benefit claimants in the lower tribunals. Read more about how this has now culminated in Lord Bach's latest 'fatal motion' in the House of Lords' here.
Throughout the stormy passage of the bill the House of Lords' has consistently said 'no' to the proposals put forward by the coalition from the House of Commons.
The point we have now reached is absolutely pivotal to the rights which individuals will have in the lower tribunal. There's no prospect of everyone getting any help any more because Laspo has already put paid to that possibility. However there is room in the remaining course of this disastrous piece of legislation to make sure the claimant has access to some form of publicly funded legally aided justice in cases where a 'point of law' can be identified in the lower tier tribunal.
It is vital that this right is secured to maintain a State which can be held to account.
Government says it has done enough by conceding to legal aid availability in the upper tribunal and by putting forward a proposal which was made by the Lord Chancellor for legal aid in the lower tribunal but only in cases where the Tribunal itself identifies the need.
This is not a viable answer to a problem which requires a better solution.
I reject the Lord Chancellor's first - tier tribunal as absolutely 'useless', it is of no practical help at all. Thankfully the House of Lords' voted against the Lord Chancellor's 'offer'. You can read an article on Mylegal giving reasons why the Lords' should reject the amendment put forward by the government here. The House of Lords' went on to overturn the government in a vote on the 3rd December 2012 - this was because a majority of Lords' agreed with Lord Bach's 'fatal motion'.
You can read how Mylegal got a mention in Lord McNally's winding up speech here and find out which peers voted for and against here. It is important to point out that Baroness Doocey and Tonge are both Liberals and held out for this very important piece of legislation to be sorted out properly with the support of others including Labour, cross- benchers and some independents.
The Liberals have consistently voted with government right throughout the passage of the bill despite their public protestations prior to pressing the amendments to a vote.
Lord Bach's fatal motion and the events which preceded it....
"Lords defeat part of legal aid cuts"
So what happens now?
"Peers reject draft order in package of budget cuts that critics said would deny claimants fair hearing in point of law cases"
The government has a habit of overturning the House of Lords' when it comes to having the final say, they did so on the grounds of 'financial privilege' after the House of Lords' voted overwhelmingly for a more generous application of welfare benefits legal aid earlier this year. But Lord Bach has, on this occasion, put forward a 'fatal' motion.
But is it?
We're trying to find out the true definition of a 'fatal motion' by making a few enquiries of our own; we can however take a look at the situation in order to get some idea as to what may happen.
Don't get me wrong, I'm not for one minute so deluded as to think the Legal Aid, Sentencing & Punishment Act (or Laspo as we called it in the bill stages) won't pass through the regulatory stages but it seems quite possible that government has to pass a final hurdle before it can say 'job done'.
Laspo is a truly awful piece of legislation over which the government should hang its head in shame. The Ministry of Justice has completely abandoned all principles of vital access to justice in its absurd pretence that budgetary reductions are necessary to stop the £2.1 billion annual legal aid bill 'spiralling' out of control. A huge amount of evidence was presented in the debates which showed that government would make no financial savings by axing welfare benefit legal aid. Unchallenged CAB research showed that for every £1 spent on welfare benefits advice over £8 would be saved.
The bill's passage through Parliament has certainly been a downward spiral; government has shown very little sign of wanting to plug the very serious justice gap which will exist if they make no provision whatsoever for legal aid in the lower tribunal.
From beginning to end, Laspo has proceeded in a silenced whitewash full of empty promises with false assurance being given to 'protecting the most vulnerable in society'. It is scandalous that access to justice has been eradicated in the availability of welfare benefit legal aid by continually shouting down suggested amendments; all that remains is a tiny sliver of justice for those fighting in the lower tribunals to get their benefits sorted out - however it is vital that we fight on for the best we can get in the lower tribunal.
We are not talking about a few people being affected, the latest HMCTS figures for benefit tribunals have seen benefit appeals go sky high with figures for the infamous Employment and Support Allowance on track to reach a quarter of a million by the end of the 2012/2013 if the current 40% increase on last year year continues.
The HMCTS quarterly figures can be viewed here and show how benefit appeals account for 55% of all Tribunals with an overall rise of 14% in the number of all benefit appeals with an alarming increase on previous 'record' numbers of ESA appeals. There is a significant problem at HMCTS because the number of benefit appeal 'disposals' (82,300) has fallen by only 300 in numbers when compared with the same period last year; - yet the number of receipts has risen dramatically.
You also need to consider cases which have not yet reached the Tribunal; Mylegal research shows around 425,000 incapacity 'conversion' cases are awaiting 'assessment'; many of which will end up going to appeal.
It is plainly obvious that as the numbers of appeals increases then the numbers of cases involving an issue or point of law or error of law will proportionately increase. It is a natural by product of welfare reform that points of law will come up in cases as new legislation goes before the decision - maker. I have never seen such an avalanche of new legislation brought in to play so quickly as I have since the coalition came to power - the scope for mistake in drafting bad law is immense; dangerously so.
The Lord Chancellor's promise
Is one which must be honoured
Here it is
Ken Clarke QC.....
“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."
What happens next is fatal in more than one way, of this we should be absolutely certain. The passage of the bill has seen legal aid for welfare cases whittled down from 130,000 cases to a very small number of cases. The erosion of justice exercise has been carried out with scant regard to the lives of those individuals affected. It is only a pitifully low amount of cases which will end up salvaged in the Upper Tribunal. Ken Clarke's much promised first - tier concession would amount to legal aid being available (using 2011/2012 figures) in no more than 692 cases on a 'tribunal rule number 39 application'.
Ken Clarke's solution would do absolutely nothing to assist justice; - it would throw it entirely open to the judiciary to have to concede to their own error. An error of law arguably arises in any case where a point of law is not identified within the course of a hearing. How many Tribunals will admit to their own error, how many judges will have the time to identify an error which has not been raised by someone seeking to identify what a tribunal may have overlooked?
A claimant without proper help will not have the first idea when a legal issue on a point of law needs to be identified - it is ridiculous to leave it an unrepresented appellant to rely on tribunals to accept their own error. The chances of tribunals conceding will become much less the more they go on getting used to being unchallenged.
The whole point of legal aid is to hold the State to account especially in points of law cases, what chance is there of that happening where it is an arm of the State - the judge - that you have to ask to make a concession that his master should be held to account?
Point of law cases require identification before they can be argued. These kind of cases can have a profound effect on justice for others - especially where the point of law applies to a large number of cases.
The Lord Chancellor has failed to explore his own rules; it was his contention that there is no mechanism for making a point of law application in the first - tier under the procedural rules; - the rules of the Secretary of State. There is however a rule which the chancellor has overlooked which I have referred to here; it is a rule which I contend could form a foundation for points of law cases in the first - tier to be moulded in to a much better regulatory concession than the one put forward by Ken Clarke.
These regulatory concessions are vitally important - how many of us truly appreciate how unchallenged law is often wrong and can lead to a judicial system which breeds real ' fatal consequences'?
It is beyond me that Laspo didn't seek to attack the principle of funding multi - million pound fraud trials such as that of Asil Nadir who's case cost millions of pounds and could have funded 26,666 welfare benefit cases at a fixed fee of £150 each.
Nadir could afford to rent a plush apartment in Mayfair in between getting chauffeur driven to the Old Bailey where his legal team argued for months over no doubt eloquent 'points of law' before a jury went on to convict him on numerous counts of fraudulently cheating thousands out of million of pounds.
Nadir's multi-million pound trial would have paid for over 26 thousand benefit claimants to be adequately prepared by hard working legal aid specialists who typically achieve success rates of 80% because they'rein the right where the State all too often gets it so badly wrong. My argument was that the financial services sector should finance such cases and that no individual such as Nadir should get legal aid because of frozen assets.
The Lord Chancellor views Nadir's case as sufficiently serious to justify millions of pounds worth of legal aid.
But what about the real fatalities?
Are these not serious cases?
[/center][/color]How can we not view
these as serious?
these as serious?
if you took the time to click on the above two names you will see that they were both two people who died whilst locked in to ongoing disputes over their 'fitness to work' with the DWP; clearly they were not fit for work. I happen to view their plight or rather that of the bereaved relatives & family they leave behind as more 'serious' than that of Asil Nadir languishing in some prison cell. I don't get our order of our priorities when it comes to how we value the importance of justice for the many against that provided at enormous expense for one.
Is it sensationalist to use these death examples?
You honestly wouldn't think so if you did my job. I have never seen people so broken, so kicked, so utterly dejected, so lacking in confidence, so ill - physical and in all too many cases mentally. I'm an experienced specialist who has handled hundreds of these cases, I know the complexities, the issues, the effect the DWP's manilla envelopes have upon my clients; they come in simply desperate for help, they even make pathetic pleas for your help, it humbles me that they do but saddens me they should need to.
You get locked in to these people's lives at specialist level, it's important to get a full measure of their problems in order to articulate a cogent case for appeal. We live in a society where thousands of pounds will be invested in getting them in to work but from next April I won't be able to argue their case for recognition of their need of 'Employment Support Allowance'. The ESA appeals are just one of many I deal with, Ken Clarke could not have got it more wrong by saying general help is all that is needed - he's wrong, very wrong.
With Laspo we won't be able to help people such as the two I have cited as 'fatal consequences' of welfare reform, there will be more. I would dearly love those persuaded that Laspo to listen to accounts of people at their wits end, in tears, in bits, desolate, broken, destroyed and who's last hope is in a specialist who knows what they're doing to navigate their way through it all.
They say our work can be done by general advisors, MP's, Jobcentres and by the very same departments who make the decisions my clients say are just plain wrong and they so very often are. Laspo has withdrawn all this individual tailored help because it wants to master welfare reform unchallenged.
Taking specialist legal aid away for individuals on issues is frankly ludicrous but taking it away for all on challenging points of law is rotten to the core.
Citing cases in the Upper Tribunal on errors & points of law simply will not happen unless the State extends a genuine offer than has so far been proposed to allow the specialist who knows what he or she is doing a foot in the door of the first tier tribunal. For if we are not funded to be there we can never use our skills in both written and oral advocacy to say to the Secretary of State " you have got this wrong" .
Extend us this foothold and allow us to challenge the State where the law demands change; you can rely on us to so effectively & you must; it is your duty to fund challenge just as the Lord Chancellor has promised.
It is a question of honour over
what is right.
To quote Lord Bach
"Ministerial threat to withdraw any concession were particularly unappealing to House of Lords'.
Government now has duty to respond in
generous manner"
what is right.
To quote Lord Bach
"Ministerial threat to withdraw any concession were particularly unappealing to House of Lords'.
Government now has duty to respond in
generous manner"
More in next post on the history of the amendments....
