No surprises - they disagree on most everything. The Welfare Benefits is interesting, however; they intend to allow appeals to the Upper Tribunal on a point of law. First Tier is still out. I think this is a real ringer - it will allow them to draw an artificial distinction between what is, and what is not, a legal issue by arguing (as they have already done) that appeals to the FT tribunal are not really 'legal' per se and publicly-funded assistance is not really necessarily given the 'user-friendly' nature and straightforwardness of the proceedings. Instead, they will no doubt make much of the fact that they are making a 'big' concession that 'proper legal issues' - points of law - will still be in scope. Inevitably, this may be the escape route from outright hypocrisy that the Lib Dems were secretly hoping for - being able to vote against the Lords on the basis that the new concession is now enough, which it most certainly isn't. We shall have to see...
I think what the very limited concession entirely ignores is that providing assistance to someone appealing to the Upper Tribunal but not the lower is the equivalent of cheerily giving someone the key to the penthouse suite but removing the stair-case and the lift
In other words, it is clearly not enough and is just adds insult to injury
Nor does it offer any solace to the vast majority of welfare benefit applicants who are suffering as a consequence of poor decision-making by the State and who need to pursue their rights in law to overturn or otherwise challenge incorrect decisions on their entitlement to benefits. In most cases, they will still be excised from the legal system or, for the daring litigant in person, running its course blindly with little knowledge of how to navigate properly
Assuming a client needed assistance with an appeal, we also have to ask ourselves just how would a client easily (at least as easy as it is now given legal aid for Welfare Benefits exists) get to the point of being able to appeal to the Upper Tribunal when Social Welfare Law as a broad discipline for lawyers and specialist advisers is being emasculated by LASPO? Just how many organisations and bodies will still even be able to offer specialist welfare benefits advice once their main (if not only) source of funding for such work is removed?
My cynical view is simply that the concession gives the Government the opportunity, as I say above, to play down the need access to justice for individuals by pretending it is addressing the most serious of them by allowing appeals to the Upper Tribunal on points of law
The concession in no way addresses the inherent inequalities in disputes or potential disputes between the State and the individual, it simply entrenches them
Any views on this, especially from Welfare Benefits professionals, would be greatly appreciated. It's important we can get the right message out as quickly and effectively as possible: on Monday
Nick has also been doing some good work on Mylegal around the Commons response that is well worth a read:
Post by watchthestars on Apr 15, 2012 11:27:00 GMT
[EDIT 16/04/12: IF FOLLOWING THE CIRCULATED LINK YOU WILL NEED TO SCROLL UP TO SEE THE ORIGINAL POST]
With regards to the welfare benefits amendment I strongly agree the concession made does not go far enough by half. The penthouse/stairs analogy is a great one. I also agree that there appears to be certain level of 'party politics' at play.
For the last two years I have been a welfare benefits caseworker for Community Legal Advice. During 2011 alone I assisted an estimated 700 clients, either with initial advice, or ongoing casework. In total, I helped those clients get a total of £45,000+ in benefit arrears, £14,000+ in overpayments written off and helped many boost their ongoing entitlement. Of that 700, I recall assisting only two clients with their appeals to the upper tribunal. To understand why, one must first understand the processes involved.
A first tier tribunal hearing will, itself, usually only be heard some 6-12 months after an initial decision (eg. to refuse a benefit) has been made. This is because of the staggering backlogs which the first tier tribunal currently faces. If the first-tier tribunal do not uphold a claimant's appeal, in order to appeal to the upper tribunal the claimant must request a 'statement of reasons'. The statement can often take up to 6 months to be drafted and issued to the claimant. Once received, the claimant will then have 1 month within which to ask for permission to appeal to the upper tribunal. To do so, the claimant must be able to identify an 'error in law'. It is too late, at this stage, to raise any new dispute regarding the facts of the case or present any new evidence; the fact finding has been done and the upper tribunal can now only look at whether the way the decision was made was correct (in law).
What this means is that if a client comes to us for advice after a first-tier tribunal Disability Living Allowance hearing and we find that they did not gather or present relevant medical evidence at the hearing, an appeal to the upper tribunal will usually be meritless. Similarly, if the client were an EU national trying to show that they had the 'right to reside', but did not present the required wage slips or registration certificates from the Home Office for periods when they worked in the UK, it is too late to do so and there is, again, usually no grounds to challenge the decision further.
If all the evidence was presented by the appellant and an advisor can establish that the tribunal panel made an error (eg. misinterpreted the law, did not cite relevant case law, made an unsubstantiated finding of fact) then an application for permission to appeal to the upper tribunal can be made. However, it will then usually take a further 6 months or so for this to be accepted. If it is not accepted, then the appellant can appeal directly to the upper tribunal. They will again be waiting a number of months for a district Judge to look at this and even longer for a decision to arrive. If, finally, an appeal to the upper tribunal is upheld, it will often be the case that the original decision is set aside and the matter passed back to a newly constituted first-tier panel and heard again. Based on the wording of the government's concession, it may be that legal aid funding would stop there, at the most crucial stage; making sure that the first tier tribunal make a correct decision second time around!
It is clear from the above that upper tribunal appeals, if they get off the ground, are inevitably more technical ('errors in law' often hinging on the close scrutiny of the tribunal's 'statement of reasons' and their interpretation of the wording of the law). It is also this type of appeal which helps define and refine the law to the benefit of all involved. For both these reasons, funding for specialist legal advice at this stage is essential, and therefore very welcome. However, it should also be clear from the above that (bearing in mind the evidential requirements, strict deadlines and the staggering time which such an appeal takes) in most instances, by the time appealing to the upper tribunal even becomes a possibility, the horse will already have 'bolted'.
For example, if a client were refused Housing Benefit, s/he would need advice on what evidence must be gathered and what arguments must be put forward for the decision to be changed by the local authority themselves, or at the first tier tribunal stage. If s/he only gets advice after first tier, then it will almost always be too late, as it is unlikely that the relevant evidence was put before the first tier panel and there will be no further opportunity for findings of fact to be made. Even if the right evidence was there and an appeal can be made to the upper tribunal based on an error of law, by this time, the client is usually in severe financial hardship (if not already evicted) and s/he will only have longer to wait (possibly up to year) before any decisions regarding entitlement can be changed following an upper tribunal decision. I have spoken with many clients who, after 12 months spent waiting for an appeal to be heard by the first-tier tribunal, have simply lost the will to pursue potential upper tribunal appeals, even when there was merit. The upper tribunal is distant and foreign world to most people using the appeal procedure; they don't have the map to get there and rarely have the stamina required.
In short, offering funding for advice at this late stage alone is like throwing a cup of water on a forest fire; it will do nothing to help the vast majority of vulnerable and financially impoverished people remedy their day-to-day benefits issues. If advisors can only step in and get their hands on a case as late on as the upper tribunal, they will stand very little chance of being able to achieve a successful outcome. It's like a doctor only being able to examine a patient for the first time when they have reached intensive care!
This is not the type of concession that campaigners have been pushing for, nor is it the type of concession the public need. It is a concession the benefit of which only ever be experienced by a small minority claimants who already have the luxuries of a steady flow of income, a roof over their head and plenty of time on their hands. Not those facing imminent eviction. Not those refused income support with a newly born child to look after. Certainly not EU nationals or their family members who have been refused every benefit under the sun and left with no other income...
In fact, one case I came accross (Tilianu - www.bailii.org/ew/cases/EWCA/Civ/2010/1397.html) which went to the court of appeal related to an EU national who had claimed a Crisis Loan and was refused because he did not have the right to reside. Crisis loans are supposed to be one off payments paid on day of application, or very soon after, to meet the person's immediate needs. The court of appeal didn't issue a decision until a over a year after he applied. What's worse, had the DWP made the right decision to award ESA in the first place (and had someone helped him with a first-tier tribunal appeal) he would never have needed the crisis loan or go to the court of appeal!
ESA was eventually awarded (though the crisis loan was not) and the court of appeal acknowledges this "embarrassment" in paragraph 6 of the judgement.
Post by Patrick Torsney on Apr 15, 2012 11:54:51 GMT
This is incredibly helpful, thank you and welcome to ilegal watchthestars
Another point that is perhaps worth making here, is that if one person - watchthestars - can achieve so much for his or her client group in financial terms in just one year (£45,000 + £14,000 + many increases in ongoing entitlement) you can imagine how much impact a whole swathe of properly trained and funded social welfare advisers are having!
It wouldn't surprise me in the least then, if when talking about austerity as a reason for the cuts, the underlying context is not one of prioritisation of resources but, that it is simply expensive paying people what they are entitled to. In other words, without professional assistance the State knows it will save a considerable amount of money by simply continuing to make poor decisions; especially if ways of challenging such decisions are conveniently removed
It is also bizarre as LAPG have said that legal aid for appeals will only be available in the Court of Appeal and Supreme Court for welfare benefits but not for any of the other areas of social welfare law coming out of scope. There is no logic at all for this.
False Economy blog has a post from YLAL welfare benefits adviser on how the welfare benefits concession on appeals is meaningless
"Commons considers Lords amendments to Legal Aid Bill
On Tuesday 17 April 2012, the House of Commons will consider the Lords amendments to the Legal Aid, Sentencing and Punishment of Offenders Bill.
Last month, the Government suffered a number of defeats at the hands of the Lords, largely about the areas of law which would continue to receive funding under the bill.
Notably, the Liberal Democrat Lady Doocey tabled an amendment which would retain legal aid for advice on appeals against welfare benefit decisions at the first-tier tribunal.
The amendment was agreed by 237 votes to 198. A response circulated in advance of Tuesday’s debate suggests that the Justice Secretary Ken Clarke will move an amendment to retain legal aid for advice on appeals made to the upper tribunal or higher courts.
What does this mean exactly and what difference would it make to those seeking advice in relation to benefits matters?
As a welfare benefits advisor, I assisted around 700 clients during 2011, providing either initial advice, or assisting with ongoing casework.
The cases involved entitlement to benefits such as Employment and Support Allowance, Disability Living Allowance, Housing Benefit, Child Benefit, Tax Credits and even help with funeral costs via the Social Fund. And yet, of those 700 clients, I can recall assisting only two with appeals to the upper tribunal.
To understand why, one must first understand the relationship between the first-tier and the upper tribunals.
When an appeal against a welfare benefits decision is made, it will first go to the benefit provider that made the decision. If the decision cannot be revised, the benefit provider should pass the appeal to the first-tier tribunal. At present, a first tier tribunal hearing can take from six to 12 months to be heard simply due to the staggering backlog of appeals which the tribunal service currently faces.
If the first-tier tribunal does not uphold the appeal, the appellant has a right of appeal to the upper tribunal. To appeal, the appellant must first request the tribunal’s 'statement of reasons'. This often takes months to be drafted and issued to the appellant.
Once received, the appellant will have one month to apply for permission to appeal to the upper tribunal. The appellant must be able to identify an 'error in law', e.g. the first-tier panel misinterpreted the wording of the legislation, failed to consider relevant case law or did not back up a finding of fact with sufficient evidence. It is too late, when appealing to the upper tribunal, to raise any new dispute regarding the facts of the case or present any new evidence; the fact finding has been done and all the upper tribunal can look at is whether the way in which the first-tier tribunal made their decision was correct.
It is clear that upper tribunal appeals do involve subtle and technical legal issues, and it is these appeals which help test, define and refine the law itself. For both these reasons, funding for specialist legal advice at this stage is essential, and therefore welcomed.
However, it should also be clear that the stage at which the vast majority of appellants need assistance is in their appeal at the first tier tribunal, and even before that while the appeal is still being dealt with by the benefit provider. In most instances, by the time the option of appealing to the upper tribunal becomes available, the horse will already have 'bolted'.
If, for example, a case relates to the disallowance of Housing Benefit and an appellant is facing eviction, what’s needed is a fast resolution. Clients need advice on what evidence must be gathered and what arguments must be put forward for the decision to be changed by the local authority or the first tier tribunal.
If they only get advice after first tier, it will almost always be too late, as it is unlikely that the relevant evidence was put before the first tier panel and there will be no further opportunity for findings of fact to be made. Ideally, these cases should be resolved with the local authority within weeks or, at worst, at a first tier tribunal hearing within months; any longer and the appellant will have already been evicted, the upper tribunal not even having set eyes on the paperwork.
In short, offering funding for advice at this late stage alone is the equivalent of throwing a cup of water on a forest fire; it will do nothing to help the vast majority of vulnerable and financially impoverished people remedy their day-to-day benefits issues quickly and effectively.
If specialist advisors can only get involved with a case as late on as the upper tribunal, they will stand very little chance of being able to achieve a successful outcome - it's like only allowing doctors to examine a patient for the first time when they have already reached intensive care....................."