2011 11 Welfare Benefits

Thursday 1 December 2011

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Legal Aid, Sentencing and Punishment of Offenders Bill

On 31 October 2011 "Retaining Legal Aid for Welfare Benefit Appeal" a briefing paper was prepared for MPs by Justice for All, endorsed by a group of 24 charities including Citizens Advice, Mind, Scope, the RNIB, Child Poverty Action Group and Lasa (click here for copy). The briefing paper argued that legal aid for benefit appeals and reviews is 'vital to the success of welfare reform'. It urged MPs to back an amendment to the Legal Aid, Sentencing and Punishment of Offenders Bill, introduced by a group of Liberal Democrat MPs, which would bring legal help with benefit reviews and appeals back within the scope of legal aid. The briefing highlights that advice on welfare benefits appeals costs only £150 per case and that Citizens Advice have estimated that benefits advice saves £8.80 for every £1.00 spent, because it prevents bigger and more costly problems further down the line. Nevertheless, the LASPO Bill was voted through the commons stage by 306 votes to 228, a government majority of 78. See BBC report: "Ken Clarke's justice bill passed despite 'attacks'" dated 2 November 2011 (click here for link).

The Second Reading of LASPO Bill took place on Monday 21 November 2011 in the Lords. The debate went on for 8 hours and the Guardian printed a summary of various statements from the Lords in an article headed: “Is this possible?” (click here for link). These include:

Baroness Kennedy of The Shaws:

"The 1972 Act introduced a scheme for legal advice on any matter of English law, known variously as the green form scheme or the £25 scheme. It meant that a solicitor was available to give you advice. Law centres and advice bureaux came into being around that time, too, to give advice - on welfare benefits, community care, mental health, education law and so on - on that first call, when people have anxieties about how something is affecting their lives. I know good, decent, committed, idealistic lawyers, who have not become rich but who can persistently stay in this area providing that kind of advice to people. For us to be destroying it seems to me to be crazy."

Lord Howarth of Newport:

"Through legally aided advice centres, litigation is actually averted, tribunal procedures are smoothed, ill health is prevented and children are saved from harm".

Baroness Mallalieu:

"I sat as a recorder for some years in both criminal and civil cases. A litigant in person was the one thing I most dreaded. The whole case took far longer as everything had to be explained-the procedure and the law, which usually I had no time to check. I had to help them with the evidence, with cross-examination and, indeed, with every aspect of the case. The rest of the list, which was always long, often went out of the window."

See also Lord Beecham on the withdrawal of legal aid for welfare benefits:

"If there is no legal aid for welfare benefit advice, some of the biggest losers will be people with disabilities. These people often need legal advice to obtain the benefits they have a right to. The figure of 78,000 disabled people who will be denied specialist legal help for complicated welfare benefit problems is staggering. But the Government say, at the moment, “No, these people do not need legal advice. They can do it themselves. It is all general stuff. It is all comparatively easy”. Actually, the DWP guidance now runs to, as I understand it, 9,000 pages: a good deal more than the CPAG guidance that my noble friend first wrote. As the president of the Social Entitlement Chamber, Judge Robert Martin has said that where people have not had legal advice, about 10 per cent of hearing time at welfare benefit tribunals is spent just explaining what is going on. No wonder that the noble and learned Baroness, Lady Hale, said in her Henry Hodge Memorial Lecture, and I quote:

“The idea that the law in some of these areas is simple and easy to understand is laughable”.

Legal Aid Reform

On 14 November 2011 Scope issued a new report, 'Legal aid in welfare: the tool we can’t afford to lose' - which was commissioned by the Justice for All coalition of charities, legal and advice agencies, trade unions and community groups – examining the effect on disabled people of the cuts to legal aid for welfare benefits (click here for link to report). The report follows the experience of five people as they appeal against incorrect decisions, with and without the help of legal aid. It shows the vital role legal advice plays in helping people navigate a complex system. Thus, it aims to show how removing help with welfare benefit appeals could undermine the government’s reform of the benefits system. The report highlights that there will inevitably be a greater need for advice arising from the government's radical welfare reforms - due to people being moved onto new benefits, in combination with a stricter sanctions regime, and 'teething problems' associated with the magnitude of the changes.

The report concludes that –

  • legal aid improves the prospects of an accurate outcome;
  • legal aid helps overcome barriers from the complexity of social welfare law; and
  • legal aid expenditure on welfare benefits cases provides value for money.

Note: Disabled people make up 58 per cent of those who receive legal aid for welfare benefits cases. This translates to over 78,000 disabled people each year who will be denied specialist legal advice if these measures go through. The report contains the following extract on the complexity of social welfare law, with particular reference to disability benefits:

ii. Legal aid helps overcome barriers arising from the complexity of social welfare law.

Secondly, legal aid is crucial for helping to overcome the complexity of this area of law. The withdrawal of legal aid for welfare benefits advice has been driven by the very clear contention made by Government that these cases do not necessarily require legal expertise. This, however, underestimates entirely the complex bureaucracies that surround welfare benefits and the legal knowledge required to navigate these.

The argument that welfare benefits cases are not sufficiently complex to merit legally aided advice appears to be conflicting greatly with the rationale cited by the Rt. Hon Secretary of State for Work and Pensions, Iain Duncan Smith MP, for introducing the Welfare Reform Bill currently going through Parliament. The Bill, he argued, would ‘cut a swath through the massive complexity of the existing benefit system’. The consultation on the future of the welfare reform system mentioned that there were a total of 14 manuals or 8,690 pages of guidance, that the DWP issued to its decision makers to help them to apply benefit rules correctly

Studies suggest a significant knowledge gap between disabled and non-disabled people in relation to being aware of one’s rights. As revealed by the Civil and Social Justice Survey (CSJS), disabled people are more likely to report that they do not know their rights compared to other respondents (69.2 per cent versus 63 percent). In light of such evidence and amid concerns that, in the context of welfare benefits cases, this lack of knowledge is exacerbated by the complexity of the legislation on which decisions about entitlement are made, the proposals bring with them serious implications for disabled people.

As is the case for other benefits, most of the cases in relation to entitlement to DLA have focused on the detailed interpretation of the descriptors set out in regulations on the basis of which eligibility is determined. In relation to just one of the descriptors that are applied for DLA which requires someone to prove that they are ‘unable or virtually unable to walk’, there have been a wealth of decisions which have attempted to suggest a distance as a rule of thumb to meet this test. Without advice, disabled people will lack the knowledge of case law around the descriptors which is constantly evolving, or know how to apply it to their circumstances.

It is also important to note that some aspects of the rules about entitlement to benefits are conceptually difficult, such as the difference between the concepts of ‘being unable to walk’ and ‘being virtually unable to walk’. The latter is a much more complicated test and a number of factors have to be considered in assessing whether a person is virtually unable to walk, such as any rest periods during walking or speed at which a person can walk. Understanding these differences of interpretation is crucial for knowing whether the department has applied the test correctly, and, if not, on what grounds to appeal and using what evidence.

Most of the benefit rules are highly technical in nature and difficult to understand without specialist legal knowledge. There are important distinctions between conditions of entitlement that must be satisfied by day and those that must be met by night. For instance, for the DLA care component, the regulations refer to ‘continual supervision’ throughout the day, and ‘prolonged or repeated attention’ at night in order to avoid substantial danger. These descriptors have to be interpreted according to the meaning they have been given in regulations as well as in case law, which is simply incomprehensible to many disabled people without legal help.

Whilst a number of the reforms on entitlement to benefits may reduce the complexity of the existing system, decisions on entitlement for benefits will remain subject to complex regulations. The need for legal advice under the new system is all too evident as some of the new regulations emerge. By way of example, the draft Personal Independence Payment (PIP) assessment proposes to take into account the successful use of aids and adaptations in determining eligibility. However, the way in which the regulations have been drafted (‘such aid can be reasonably be used’) will lead to appeals being taken to clarify the criteria for deciding what the term ‘reasonably’ means in this context. It will be crucial that legal aid is maintained to help iron out some of these complexities under the new system, which could affect entitlement to benefits for potentially a large number of disabled people.”

Housing Benefit Reforms

On 11 November 2011, London Councils - the umbrella organisation for London’s 33 local authorities issued a new report "Does the cap fit?' an analysis of the impact of welfare reform in London", (click here for a copy). The study provides an analysis of the scale and degree of housing unaffordability that may result from the Universal Credit Cap ('UC'). It is currently expected that the cap will be set at £350 for single person households and £500 for all others, based on UK median earnings. Where a household’s combined living cost benefits and housing benefit exceeds the cap, their benefit entitlement will be reduced to the cap. The UC cap does not apply to working households (or to those of pensionable age). The study also considers the options available to households as a result and the potential impact on selected local government services.

Key findings of the research include -

  • an estimated 133,000 households - some 20 per cent of the total number of workless households - would be unable to afford their rent to some degree if universal credit is introduced, as planned, between 2013 and 2016;
  • Brent and Redbridge are the boroughs where the most families - some 30 per cent - would not be able to afford their current rent, because they have a greater proportion of larger households, and because these workless families face relatively higher rents;
  • more than a third of single parent families, and 50 per cent of couples, living in London with three children will not be able to afford their rent; and
  • the average loss for households across the capital as a whole will be £105 per week, ranging from £58 for a couple with no children to £117 a week for a couple with children.

Employment and Support Allowance Appeals

According to the findings of the 'Employment and Support Allowance: work capability assessment by health condition and functional impairment: Official Statistics October 2011', the statistics show that, of people who made a claim for ESA between October 2008 and August 2010 and who were found fit for work, 39% have had an appeal heard by Tribunals Service to date and 39 per cent of those appeals were successful (click here).

On 21 November, 2011 Channel 4 News reported that the employment and support allowance (ESA) system was being 'dogged by endless and repeated appeals' (click here for link). The number of ESA appeals has quadrupled in two years, from 68,000 in 2009 to a projected 240,000 by the end of this financial year. The cost to the taxpayer is £80m so far, and rising. Channel 4 News reported that the new system was struggling to cope as claimants were being bounced between being told at assessment that they were fit for work, to being found unfit at appeal and then sent straight back for a new assessment where many are found fit for work again. The situation, Channel 4 News reports, is dominating the caseloads of advice centres, and putting enormous pressure on GPs. The Guardian also carried a report on the topic (click here for link).

On 30 November 2011 in an article headed: 'Government hires extra judges to tackle welfare appeal backlog', (click to link here) the Telegraph reported that:

"Since 2007, only ten Social Entitlement Chamber judges have been recruited to oversee the appeal process but in recent months a further 84 have been hired to help tackle the caseload, at a pro-rata salary of £101,000 per year."

Case law

In Secretary of State for Work and Pensions v Elmi [2011] EWCA Civ 1403 (18 October 2011) the Court of Appeal confirms that a claimant who has been a worker or who is retaining worker status on some basis and who then claims Income Support rather than income-based Jobseeker's Allowance but indicates that they are looking for work (e.g. on the HRT2 stencil or similar documents), and is accepted as so doing, will have a right to reside under Article 7(3)(c) (or (b)) of the Citizens'' Directive 2004/38 as someone who has retained the status of a worker. Moses LJ in a concurring judgment at paragraphs 26 and 27 said (click here for transcript):

"The Directive imposes upon Member States an obligation to put in place a lawful system of registration whereby that Member State can undertake monitoring and control in order to assess whether a particular applicant has in truth a genuine link with economic activity in this country. But in this case nothing of the sort took place. Whilst on the one hand the Secretary of State requires registration, on the other there was a total failure to put in place a lawful system of registration. As my Lord made clear, a lawful system requires the obligations of legal certainty to be satisfied. They were not in this case. This claimant for Income Support was left in a total state of ignorance as to how to subject herself to a proper system of monitoring and was permitted to claim Income Support without any warning or explanation that, if she did so, no monitoring or no proper system of monitoring would be put in place and thus the Secretary of State would be deprived of the opportunity to assess the link between her and economic activity in this country.

On the contrary, for all she knew she had done quite sufficient by putting her form in, explaining that she had become involuntary unemployed and wished to seek work. Her form was accepted. Absent any lawful system for registration which might well have been satisfied by her being clearly told on the form that she needed to apply for Job Seekers Allowance and not for Income Support, it seems to me unlawful, as well as quite unjust, for the Secretary of State to turn round and say "because you applied for the wrong form of benefit we could not monitor the truth or otherwise of your claim and therefore you are not entitled to Income Support because you are a person from abroad".

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