Post by nickd (Mylegal) on Oct 11, 2010 21:25:22 GMT
Thank you Patrick. The online test for the DRO can be completed and submitted to the Insolvency Service in no time at all and you end up being an improved intermediary and thus able to score 5 points, although I take your point about having someone 'in post'. From our point of view we met the criteria and therefore feel a bit miffed that those who didn't are having a moan, surely those who were more 'up and running' should receive a better score? Be interesting to see the outcome of the latest JR, can't help but feel all these challenges will be a home goal, as the LSC will just await the spending reviews and then we will all lose out through reduced budgets!
Post by Colin Henderson on Oct 12, 2010 12:10:04 GMT
Davies Gore Lomax JR grounds confirmed as: - Approved intermediary criterion and - Upper Tribunal criterion
Full hearing is on 27 October at RCJ in London.
As regular readers will know there was some confusion about this JR which, if successful, has the potential to derail all SWL contract awards. The firm had been talking to the Solicitors Journal so I asked them to follow up what ilegal had heard and today they got confirmation from Keith Lomax the senior Partner.
The Solicitor's Journal article reads: "Leeds firm Davies Gore Lomax has launched a second judicial review against the Legal Services Commission.
The firm won a judicial review against the LSC in Manchester last month over the commission’s failure to reveal whether or not it had succeeded in an appeal against the loss of its contracts in social welfare and housing.
The LSC agreed at the hearing that it would make a decision on the appeal and let the firm know by a fixed date. Keith Lomax, senior partner of Davies Gore Lomax, said the firm lost the appeal.
However, the Law Society’s successful judicial review in the High Court at the end of last month means the firm will keep its family contract.
Lomax said that, without the new social welfare contract, the firm could not offer housing, welfare benefits or debt services when the existing civil legal aid contract expires on 15 November.
“We have more qualified housing lawyers than any other firm in Leeds,” Lomax said. “We run the duty possession scheme at Leeds County Court, which we set up in 2004.
“To get a contract, you do not have to demonstrate that you have been into a court and defended a possession claim. We have brought housing cases to every court in the country, including the House of Lords and the European Court of Human Rights. That information was regarded as irrelevant.”
Lomax said the firm failed to win the social welfare contract by three points. Two were lost because the firm did not have an approved intermediary for debt relief.
“We did not expect to have to have one in place by the time of submitting the bid because the LSC said in its consultation response last summer that we did not need to have one in place until six months after the start of the contract. The way this was sprung on us was grossly unfair.”
Lomax said the criterion in the social welfare tender requiring firms to have an intermediary in place to gain maximum points was “even more unfair” than the requirement that family firms should have a caseworker on both panels.
“The person we chose to be an intermediary was on maternity leave until July. She qualified on Friday last week, in time for the original start date of the contracts on 14 October.”
Lomax said the firm lost a further point because it had not taken ten welfare benefits cases to the upper tier tribunal.
The same point was raised by the Community Law Partnership, which regained its contract after taking the LSC to a judicial review in August. Mr Justice Collins, sitting in Birmingham, was reported as describing the criteria for the social work tender as “totally irrational” (see solicitorsjournal.com, 27 August 2010).
Lomax said the firm had not taken ten cases to the upper tribunal because it had not lost ten cases in the lower tribunal. He said the firm’s judicial review was due to be heard in London on 27 October." "
Grateful acknowledgments to Nick Hilborne at the SJ for this work which now confirms there is a major challenge to the principles behind the SWL tender imminent
Post by nickd (Mylegal) on Oct 12, 2010 18:11:50 GMT
Interesting news Colin.
The DGL grounds seem to be a bit contradctory; on the one hand they infer providers should be recognised for having more experience in Court. Yet on the other hand, DGL play down the need to have some experience in the UT on what seem to be fairly lame grounds. Clients can approach a provider at the point where they have already been to the FTT, so it's a bit simplistic to say that good providers defend cases so well in the FTT, that they never have to go to the lengths of appealing to a higher level. A lot of the ESA cases cuurently result in refusals and judicial challenge in the UT is one way of rectifying erroneous legislation. It is right, in my view, that providers are scored more highly for having more experience in the process of appealing to the UT. Ultimately, as DGL recognise, clients want a better level of experience from their provider.
Post by Colin Henderson on Oct 13, 2010 14:00:21 GMT
I hear what you say - it IS contradictory to say going to the ECJ is a mark of quality but going to UT is not, and there are definitely two way to look at this. All I can suggest is you look at the way CLP argued it before Collins J who agreed it was absurd that you would be deemed a less good provider if you won at first instance (see our thread on that here: legalaidandme.proboards.com/index.cgi?board=legalchallenges&action=display&thread=938
The problem I think is the quantification - 10 cases at Upper Tribunal in 12 months discriminates positively in favour of larger providers who do a heck of a lot of cases and/or those who, for whatever reason, tend to lose quite a few FTT cases, which does sound absurd, and (correct me if I'm wrong) but hardly any of the current ESA cases in the system would have reached the UT by the time the bids closed in April.
At the end of the day one respected High Court judge has already agreed this is an irrational criterion and that is all it would take on 27th. But the LSC approach appears to be to tough it out - so I presume the relief DGL are seeking is a declaration that THEIR OWN contract refusal was unlawful rather than ALL SWL contract awards are unlawful (as the Law Soc did). That remains to be seen on 27th October....
Post by nickd (Mylegal) on Oct 13, 2010 18:00:27 GMT
I've noted today's progress on the other thread re LSC; ever aware of tommorow's deadline for one months notice of extension, will the LSC Regional Office white envelope be there in my in tray I ask myself? My guess is they will press ahead now with the SWL contracts; other than family and family/housing.
It's true that ESA Judgments in the UT are still in their infancy. However, the criteria was also based on whether you've made an application for leave, not necessarily doing the full appeal. I still think I hold with experience in the UT being worthy of a few extra points. Points make prizes and all that! As a specialist agency, quite a few clients would come to the provider at the stage where they have already been to the FTT and would be seeking your specialist advice on appeal to UT.
As for 10 cases being indicative of preference being shown towards larger providers, didn't the LSC make it clear this was their intention? It is often the nature of the game about arguing a point which maybe doesn't succeed at the FTT but proving the point in the UT is what leads to case law being established. I don't buy the argument that no UT cases is an indicator of high success in the FTT; experienced providers would have a mix of both.
This is a very enlightening site, trawling the LSC websites has to date told us very little, glad I've found it! Thanks for your response.
Post by StephenMichael on Oct 13, 2010 18:57:55 GMT
I agree that a reputable and competent WB adviser will have the skills and knowledge to put cases to both the FTT and UT. It's always been my practice to make a balanced judgement as to whether the FTT have got the law wrong after they have heard what was said to them by the appellant and given proper weight to all the evidence presented to them. In most cases, if the FTT find against the client you can explain to them why that is the case. That it is always desirable to represent your client. You should always apply to the UT with care because the UT decision could affect thousands (if not more) other people. You should not apply "willy nilly" on every case you lose at the FTT.
The point of cherry picking has been raised, ie only taking winnable cases, don't forget, this can be a poisoned challice because if you take cases that have no or very little prospect of success, surely you fail the sufficient benefit test for Community Legal Funding.
Also you can only do cases that come in the door.
I think the legal argument for the JR is that the UT criteria was not included in the consultation exercise and was sprung on us at a late stage as a tie breaker.
Post by nickd (Mylegal) on Oct 15, 2010 18:04:21 GMT
Yes true Stephen, I wasn't advocating a default attitude to appeal to the UT upon an adverse judgement. In most cases, I think clients do feel they've had a fair hearing. However, I have been much more inclined to go to the UT of late on what I belive to me good grounds with merit. The FTT's are increasingly acting as protector of the Secretary of State's purse, particularly in DLA/ESA/IB cases and I think it leads to error on their part as they are more focussed on saving the State money than they are determining whether the client is properly entitled. I feel compelled to make a stand and hope these cases go before UT Judge Williams who seems to be of a similar view.
Very Very Very Very dangerous and unsustainabler position to state that
'The FTT's are increasingly acting as protector of the Secretary of State's purse, particularly in DLA/ESA/IB cases and I think it leads to error on their part as they are more focussed on saving the State money than they are determining whether the client is properly entitled.'Statistics do not back up that position. Most DLA IB and most other appeals have at least a 50% chance of success at appeal.
If we as proffessionals advocate the view that WB tribunals/courts are not expert and independent we do a great misinformed and biased diservice to the WB tribunal/court and clients. True ESA appeal successrate is 35% but that reflects the medical not the tribunal.
WB Tribunal/courts are the appellants 'friend' as the statistic prove. I've seen DWP local authoritities receive very hard reprimands in the way clients have been treated.
We may disagree with tribunals, but we can challenge to UT that on a point of law. I cringe when such misinformed opinions are made.
This moves into the point of the argument of the JR, expertise or not of challenging t the UT. Contract fixed fees practical consideration make these the exception. You want to shut that case. In the case of ESA IB the situation of the client who has to receive income after a failed appeal often rule this out.
The UT challenge can go wrong B v DWP proves the point.
However I have to agree we should have experience as providers of doing this level of challenge if it is required. If you do not do UT challenges then you are at best rusty in experience. Practical considerations of the contract should be put aside and any dubious decision challenged on cases where a point of law can overturn the decision AND where the often reheard case has a chance of success.
Post by nickd (Mylegal) on Oct 16, 2010 10:40:34 GMT
"Very Very Very Very dangerous and unsustainabler position to state that"
I couldn't disagree with you more. I'm not saying the FTT's are recklessly inexpert or misinformed, for the best part of it they are highly professional and expert. But hundreds and hundreds of UT and Commissioner's decisions tell us that they often get it wrong. The appropriate judicial setting for putting in place a remedy is the Upper Tribunal. Of course it may sometimes appear to have been inadvisable with the risk of an adverse judgment going against clients in general. However, these are the very cases which help us define what the law is, they make it easier to advise our clients on future cases and how their appeal is likely to go in the FTT. Much as though I admire the work of the FTT, I would never be in awe in of them to the point of viewing them as my clients 'friend'.
Tribunals are influenced by public opinion; yet it is their role to remain impartial. I became a welfare benefit specialist to stand against injustice and fixed fee or no fixed fee that is what I'll do. Of course it is always subject to there being merit in the case, favourable judgments tell me that has been so in a fair number of cases over the years. My golden rule is never to make fixed fees and cost implications my master, although it is always uppermost in my mind. The exceptional fixed fee provision can be used in cases, but I agree that the case must have substantial merit; I ensure it does.
Take the current ESA cases, Tribunals are still assessing clients in the 'old school way' by looking at whether appellants are fit for work of not. What they should be looking for is whether the appellant has limitation, in so doing you can put in place the appropriate support to enable your client to improve their prospects of finding employment whilst faced with incapacity. That is the whole ethos of the 07 WRA, it is not to simply throw claimants onto JSA without appropriate support. I disagree that the fault can all be attributed to the ATOS medical, Tribunal's are commonly failing to challenge the validity of the HCP's evidence and overlook the lack of medical evidence which should as a matter of statue be provided right through the assessment phase from the claimant's GP.
It would, IMHO, be naive to think that Tribunal's are not influenced by the current damning of the welfare state, it is our role to ensure they remain impartial to such external pressure; I often remind them of that at productive Tribunal User's Group meetings.