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Post by nickd on Dec 10, 2012 20:22:06 GMT 1
The Laspo ticking time bomb '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. The most recent drama in the House of Lords’ unfolded when Lord Bach asked his fellow peers to vote on a ‘fatal motion’ - they did & once against government lost.
The government has continually failed to impress the House of Lords’ that legal aid is not needed for welfare benefit cases.
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 being 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.
This article looks at how the legal aid for welfare benefits debate has progressed through Parliament, examines the amendments put forward, looks at those rejected, examines what’s on offer, suggests alternatives, examines ‘fatal motions’ and culminates in a question I think we all need an answer to:
Why is this government so determined to stop anyone on benefits getting proper help?
Follow this article for more.....
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Post by nickd on Dec 10, 2012 21:58:37 GMT 1
The coalition has shown little sign
of giving way Why didn't the Liberals put the brakes on when they had the chance? Injustice in disability determination has
fatal consequences Progress of the bill through Parliament has resulted in hours of debate aimed at securing amendments to make a bad bill a better bill. Parliamentarians have continually pressed upon Laspo to enable better access to justice rights for benefit claimants; yet the coalition has consistently rejected 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 in 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 enables claimants to contest wrongly calculated overpayments which in many cases transpire to be caused by 'official' rather than claimant 'error'. Official error is where it is the State who has wrongly paid out money to a claimant.
Criminalising the claimant
With no right to hold their
accuser to account
Why?
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 publicly funded help to refute an allegation of their accuser - the Secretary of State.
There are, although often forgotten, serious consequences in wrongly labelling a claimant as 'fit for work' or even 'partially fit for work'. The coalition government has relentlessly based its welfare reforms on pre-conceived assumptions that large numbers are 'faking their illness'; the right wing tabloids are full of such misleading headlines - the Daily express quoting a figure of 75% as shirking the system.
The effect this has upon claimants is catastrophic in terms of their mental well being, they feel persecuted as any number of on- line forums will illustrate; - sadly many of them talk of suicide.
If a doctor misdiagnosed a patient they would be held accountable. However it seems that if they certify their patient as unfit for work their word is not accepted. The dangers in sending unfit claimants into work are full of potentially disastrous consequences for a claimant both physically and mentally, for some it is enough to tip them completely over the edge for others it is enough to significantly worsen their illness or bring on something as fatal as heart attack.
The coalition has not shown any 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 of disputes which will do nothing to help the vast majority of claimants who have to battle their way through the lower (first - tier) tribunal system.
We should not forget the history which went before Lord Bach's fatal motion when the House of Commons considered the original first - tier tribunal legal aid amendment as voted for by a substantial majority in the House of Lords' when it went before them as amendment 168. You can read more about Baroness Doocey's amendment for legal aid in the FTT here.
This is important because Baroness Doocey's amendment was for both review and appeal and was said to be almost 'identical' to one already proposed by Tom Brake in the House of Commons. You can read more about the storm which surrounded the Liberals 'backing down' on amendments pushed in the report stages leading up to the Doocey amendment
When the amendments were returned back to the House of Commons for debate on the 17th April 2012 almost all of the amendments proposed by the Lords' were being opposed.
The Liberals were under pressure to do something to oppose what the House of Commons was rejecting, particularly in relation the provision of some kind of legal aid for people with social welfare law problems. Subsequently just before the debate on the 17th April 2012 it was Tom Brake (liberal) who put forward an 'in lieu amendment for legal aid in the FTT. Brake subsequently took his foot off the pedal and withdrew his amendment expressing trust in his Lord Chancellor to come up with a satisfactory alternative for legal aid in the first - tier.
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.
The first - tier amendment - even if only on a point of law - at least allows benefit specialists to get a 'foot in the lower tribunal door'. It is vital to be able to judicially challenge points of law at all levels of tribunal determination.
For some claimants a point of law could literally
be a matter of 'life or death'
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Post by nickd on Dec 11, 2012 8:26:27 GMT 1
What of the real fatalities? Click on the following names
'Deemed fit for work' [/center] How can we not view
these as serious? if you took the time to click on the above names you will see that they were both people who died whilst locked in to ongoing disputes over their 'fitness to work' with the DWP; clearly they were not fit for work - remember these decisions are made 'according to law'.
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 which the DWP's manilla envelope has 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 'back to work' but from next April I won't be able to argue their case for recognition of their need of 'Employment Support Allowance'.
Employment & Support Allowance is awarded to those who are completely unable to work or who can do some work with the right amount of support - it's a legal decision which demands stringent scrutiny.
ESA appeals are just one of many appeal cases I deal with - but they very effectively highlight cases where justice must be open to constant challenge. Ken Clarke could not have got it more wrong by saying general help is all that is needed in these often complex appeals - he was wrong, very wrong.
With the passing of Laspo in to law we won't be able to help people such as Karen Sherlock or Brian McCardle; they are two 'fatal consequences' of welfare reform - there will be more. I would dearly love those persuaded by Laspo to come and listen to the accounts I hear. These people are at their wits end, in tears, in bits, desolate, broken, destroyed - their last hope is in a specialist who knows what they're doing to navigate their way through the legal minefield.
They say our work can be done by general advisors, MP's, Jobcentres and by the very same departments who make the decisions which my clients say are wrong - they very often are. Laspo has withdrawn all this individual tailored help because it wants to master welfare reform 'unchallenged'.
Here's a quote I picked up from
social media tonight...
"I am 63 years old and currently being ‘assessed’ by ATOS – I suffer with Parkinson’s, OsteoArthritis and have recurring bouts of severe (suicidal) depression. The only way I can cope is to avoid all pressure at any cost – I am no longer able to work, but know I am almost bound to be judged ‘fit for work’ by ATOS. I fully believe that this will be the end for me and I will just become part of the ever rising suicide statistics"
Taking specialist legal aid away for the most vulnerable of individuals is frankly ludicrous
Taking it away for all on challenging points of law is
rotten to the core.
Why is government letting this happen?
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Post by nickd on Dec 12, 2012 9:00:36 GMT 1
Government has declared war Those on welfare see government
as the Nasty Party
Why? Laspo and welfare reforms are inseparable, they are two sets of legislation which are intrinsically linked in every conceivable way. One of the problems with Laspo is the way it has passed through Parliament in almost total silence. The welfare reform bill on the other hand has achieved slightly more publicity; most of through grossly misleading media articles aimed at turning hatred upon anyone 'unfortunate' enough to have to rely upon the welfare state for much needed support.
Breeding hatred
An unfortunate by - product of a misleading media is that people believe what they read or hear. It is estimated that in the UK over half the population (around 30 million) claim at least one state benefit; if a claimant belonged to a trade union it would be by far the largest & most powerful in the country - it would be an immensely persuasive voice of protest.
Instead the most kicked in society have had to form their own campaigns and rely upon charities to voice their valid concerns. But their means of challenging erroneous decisions in court is being eroded to a point where a claimant won't be able to challenge the law upon which welfare reform is based.
Government has waged war on welfare, amongst those most affected are the most vulnerable in society; why is government not seeing their right to challenge as serious.
Legal aid is a means of access to justice which is being taken away - why won't government allow people to challenge its welfare reforms by properly funding individuals to take on the state?
Does government think it is above listening to those it sees as skivers rather than strivers?
More later
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