2012 04 Welfare Benefits

Tuesday 1 May 2012

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Legal Aid, Sentencing and Punishment of Offenders Bill

On Tuesday, 17 April 2012, the Government overturned the House of Lords' amendment to the LASPO Bill which had brought welfare benefits back into the scope of legal aid. That amendment was overturned in the House of Commons by 288 votes to 246. The Government relied on ‘financial privilege’ - a procedure that allows the Commons to make unopposed decisions on bills that have serious financial implications. During the course of the debate in the Commons, Lord Chancellor Kenneth Clarke referred to the following reasons for rejecting the Lords’ amendment:

  • welfare benefit matters should not generally require specialist legal advice;
  • the amendment would cost £25 million, which the Government could not afford in an area of “relatively low priority”;
  • the advice provided by Citizens Advice was very valuable general advice to people with a combination of debt, housing and every other problem; but it was not specifically legal advice in most cases;
  • the last Budget had announced that £20 million a year would be made available for voluntary advice.

On the subject of whether advice on welfare benefits amounted to ‘legal advice’ Mr Clarke cited MPs’ own experience of giving social security advice as evidence that no specialist knowledge was in fact required:

“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 is required, and it should be financed by the taxpayer on legitimate grounds.” (Hansard; 17 April 2012: Column 226).

The Government did, however, accept that “when the whole case turned on a point of law, then the applicant himself or herself should not be expected to represent themselves without legal assistance”. The Government introduced its own amendment to the Bill which it described as 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 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.” (Hansard, 17 Apr 2012: Column 226).

During the debate, Kenneth Clarke (Lord Chancellor and Secretary of State for Justice) said that having accepted the argument about legal issues in the Upper Tribunal, they could make provision if the same thing arose in the First-tier Tribunal, and that the Government would consider introducing regulations which would allow legal aid for First-tier Tribunals that involved 'a legal issue'. On the thorny question as to how it would be determined whether an appeal to a First-tier Tribunal involved 'a legal issue', Mr Clarke offered the following comments:

“Of course there can be borderline cases, but, … 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.” (17 April 2011; Hansard: column 227).

“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.” (Hansard; 17 April: 2011: Column 230).

For Hansard debate - click here

For media reports on the HL debates see: the Guardian: ‘Ken Clarke climbs down on legal aid for domestic violence’ (click here) or the BBC News: ‘MPs vote to reverse Lords' changes to legal aid bill’ (click here).

On Monday 23 April 2012 Lord Bach put forward an amendment for the ‘ping pong’ section which narrowed the House of Lords original amendment by excluding reviews, leaving only appeals to the first tier tribunal in scope. The amendment was however defeated by 197 votes against to 159 votes for the motion. See Hansard (23 Apr 2012 : Column 1632 to 1651) for debate - click here for link )

See Lords briefing paper for ‘ping pong’ stage by 'Justice for All' – click here for link

The funding rules for appeals on a point of law to the Upper Tribunal in welfare benefit appeals in more detail

Section 11 of the Tribunals, Courts and Enforcement Act 2007 provides a right of appeal to the Upper Tribunal on any point of law from a decision made by the First-tier Tribunal, but that right may be exercised with permission which may be given by the First-tier Tribunal or the Upper Tribunal. The procedure for applying for permission to appeal is contained in Part 4 of the Tribunal Procedure (First-tier Tribunal) (Social Entitlement Chamber) Rules 2008 (SI 2685/2008) and Part 3 of the Tribunal Procedure (Upper Tribunal) Rules 2008 (SI 2698/2008).

Under the current rules, civil legal aid is available in the form of Legal Help. However, as the amount of public funding under this scheme is limited to a fixed sum per case, there will normally be no funds left to cover the work involved in the drafting of an application for permission to appeal on a point of law to the Upper Tribunal because it would have been used up assisting the client with the appeal to the First-tier Tribunal. There is some flexibility to extend the amount of Legal Help on a file but only if at the end of the case the LSC accept that the additional work done on the case means it can properly be classified as ‘exceptional’.

Public funding for advocacy before a Upper Tribunal Judge in welfare benefit cases is currently excluded under Schedule 2 of the Access to Justice Act 1999 and is not covered by any of the Lord Chancellor’s Directions issued under s.6(8). Public funding is only available on an exceptional basis on a case-by-case basis for welfare benefits cases before the Upper Tribunal where (i) there is a significant wider public interest in the resolution of the case, and funding will contribute to this (ii) there is convincing evidence that there are other exceptional circumstances - such that without public funding for representation it would be practically impossible for the claimant to bring or defend the proceedings, or lack of public funding would lead to obvious unfairness (LSC Funding Code para 27.5 at 3C-635).

The Effect of the Government's Amendment

The effect of the Government amendment is to insert a new category into the list of ‘legal services’ in Part 1 of Schedule 1, which contains the exhaustive list of civil legal services (defined in clause 7) available for General Cases (clause 8). Anything not contained in Schedule 1 is out of scope save for those services which may be available under special criteria - Exceptional Cases (clause 9). The additional provision to be inserted into the list in Schedule 1 reads:

6A (1) Civil legal services provided in relation to an appeal on a point of law to the Upper Tribunal, the Court of Appeal or the Supreme Court relating to a benefit, allowance, payment, credit or pension under—

(a) a social security enactment,

(b) the Vaccine Damage Payments Act 1979, or

(c) Part 4 of the Child Maintenance and Other Payments Act 2008.

The amendment so far as the Upper Tribunal is for advice and assistance to be available but not representation - the latter is reserved for onwards appeals to the Court of Appeal and the Supreme Court. This is borne out by the fact that there is no amendment to Part 3 of Schedule 1 on Advocacy Exclusions and Exceptions. Representation in the Upper Tribunal in welfare benefit cases will therefore remain out of scope. The only funding available will be under the Exceptional Cases criteria (clause 9 sub-para (3)) which limits funding to cases where the failure to do so would be a breach of the ECHR (i.e. article 6) or an enforceable EU right.

According to the Annual Tribunals Statistics 2010-11, the total number of Social Security and Child Support cases received in 2010-11 was 418,500. In that period, the Upper Tribunal (Administrative Appeals Chamber) received 4,100 cases. However, most appeals are usually decided without an oral hearing.

For the link to the Annual Tribunals Statistics, 2010-11 - 1 April 2010 to 31 March 2011 on the Ministry of Justice website click here

Housing Benefit Cuts

There have been a number of reports in the media of London Boroughs drawing up plans to send families to cities outside of London (e.g. Stoke) because they cannot afford to house tenants on their waiting list in private accommodation within London because of the gap between market rents and the local housing allowance now that the cap is starting to apply.

'Social cleansing' housing benefit cap row: Duncan Smith hits back' (2/4/10/12) BBC - click here for link

'London council wants to move social tenant to Walsall' (24/04/12) BBC - click here for link

'Q&A: Rehousing families on benefits' (24/04/12) BBC - click here for link

Will the housing benefit cap cause the 'social cleansing' of London? (24/04/12) Guardian - click here for link

Case law – Welfare Benefits and EU Law

In EG v Her Majesty’s Revenue & Customs (TC) [2011] UKUT 467 (AAC) (Judge Howell QC), it was held that the provision in Article 73 of Council Regulation 1408/71/EEC that an “employed person subject to the legislation of a member state” is to be entitled to family benefits applied in the case of a couple who claimed Child Tax Credit' where the wife lived in Spain with the children. The case concerned a joint claim to Child Tax Credit for the tax period 2008/09. The two joint claimants were both UK nationals who were married, but at the time of the claim maintained separate residences: the husband in the UK; the wife in Spain. Their children lived with the wife in Spain. Under domestic law, she counted as the person “responsible” for the children but she could not make a valid claim because she did not meet the residence condition. Her husband, on the other hand, met the residence condition but he could not make a valid claim because he did not meet the condition of being “responsible” for the children. However, during the relevant tax year the mother had been in receipt of incapacity benefit. The Upper Tribunal concluded that the wife could, under EU law, join in making a valid claim for Child Tax Credit despite not living in the UK, because during 2008-9 she was “subject to the legislation” of the UK as the “competent state” for social security purposes based on receipt of Incapacity Benefit (and was not working in Spain at the relevant time). She therefore counted as an “employed person” by virtue of the extended definition in Article 1 of the Regulation. It followed that Article 73 of the Regulation required the wife, as a UK national residing in another EEA country in exercise of her EU free movement rights, to be entitled to claim Child Tax Credits in respect of her children residing in Spain - thereby overriding the national condition about her own residence. The couple was therefore entitled to Child Tax Credit for the tax year 2008/09 (click here for transcript).

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