From CAB-link to paper follows

"Legal Aid Sentencing and Punishment of Offenders Bill: Lords Amendments: Ping-pong. April 2012.
Summary

Citizens Advice Bureaux deliver both generalist and specialist advice across a range of subjects and issues. In 2010-11 the CAB service advised 2.1 million people dealing with 7 million problems, whilst up to 140,000 clients were provided with specialist advice by bureaux under civil legal aid.

Our briefings have consistently challenged the assumptions behind this Bill. Too often policy makers have treated CAB provision and legal aid as separate services. Historically, Citizens Advice Bureaux have always worked within the overall system of publicly funded legal aid and advice, either in providing specialist advice on social welfare law, or as a referral route to specialist lawyers working in other fields of legal aid, as well as providing general advice on a range of subjects.

We recognise that resources will always have to be rationed, leaving much unmet demand, but this Bill prioritises resources within civil legal aid on a narrow range of acute and litigious problems, and away from the much larger volumes of social welfare and family law problems which can be resolved through the inexpensive early intervention of legal help. As a result 650,000 people will lose this help. We have provided examples in our Out of Scope report www.citizensadvice.org.uk/out_of_scope

Our position on the Lords amendments has already been set out in our briefing to MPs last week attached to this email. We focus this briefing entirely on advice for welfare benefits law issues as this is a difficult area where new amendments have arisen. We welcome the Government’s amendment, and support Lord Bach’s amendment for greater clarity on, and extension of, legal advice in this area.

Welfare Legal Aid

Citizens Advice supported the Lords amendment on including welfare law (appeals and reviews) within scope as our key priority. We therefore thoroughly welcome the Government amendment to make legal aid available in upper tribunals and higher courts on social security points of law, as well at the Government’s undertaking that a statutory instrument will be brought forward to apply the same principle and policy to lower tribunals. Crucially, this recognises that problems of interpreting legal regulations and case law on welfare rights do regularly arise in social security tribunals, they are complex, challenging, and will merit specialist legally aided advice.

However, this policy undertaking raises a number of issues which we address in this briefing:-
· Generalist versus specialist advice
· Points of law and fact in the social security jurisdiction
· Preparatory and evidential issues
· Procedural and gateway issues

Generalist versus specialist advice

This issue has been contentious and poorly understood throughout much of the debate. During Commons consideration of Lords amendments on welfare law the Lord Chancellor said “welfare benefits matters should not generally require specialist legal advice… Legal aid should be for those cases where legal advice and expertise is required” and as regards CAB advice “Their advice is very valuable general advice to people with a combination of debt, housing and every other problem; it is not specifically legal advice in most cases.”

This is correct, but only up to a point. For example with welfare benefit matters, 690,000 clients came to bureau with benefit problems in 2010 and the majority of these clients received generalist advice on their problems. However, many of these clients had more complex issues, so 52,633 of these benefit cases were dealt by bureaux in house specialist legal aid services. All of these cases will now be out of scope, with no funding left for any specialists. Only the more complicated problems get referred upwards or onwards to specialists.

Specialist welfare rights advisers are employed by bureau under contract arrangements with the Legal Services Commission, undertaking only work currently within current scope of legal aid covered by the Access to Justice Act funding code. Bureaux without specialist advisers will often refer cases to those with specialist advisers, so specialist advice also supports generalist capabilities.

There is a crucial qualitative difference between generalist and specialist advice as reflected by two different quality marks operated by the Legal Services Commission. Both types of advice have the function of providing legal advice, but generalist advice – provided by trained volunteers - is one off information on the law and how it relates to a client’s personal circumstances, sometimes with follow up correspondence and communication with agencies. By contrast, specialist advice involves detailed ongoing advice from professional and subject expert caseworkers (not necessarily fully qualified lawyers), including drafting documents and acting on behalf of the client. Specialist welfare benefits advice is not a “reserved activity” for qualified lawyers (such as advocacy) under the Legal Services Act 2007, but it is unambiguously recognised by the Legal Services Board as specialist legal advice. Indeed, the LSB are looking to regulate this as a specific legal activity.

It appears to us that the policy intent of this legislation as regards much social welfare law, is that legal aid funded specialist advice should be collapsed into non-legal aid funded generalist advice, thus obliterating the distinction. We do not agree with this approach, as in our experience those without specialist welfare benefits knowledge, struggle to put together coherent review requests or appeals with no input at all from independent specialist welfare rights advisers.
Points of law and fact in the social security jurisdiction

As Robert Buckland MP pointed out in debate, this distinction is rarely a clear one “I am still puzzled about the unavoidable problem of the ability to work out what is a legal issue as opposed to a merely factual one. Fact management and legal issues often come hand in hand… the two very often come together. A person does not come through the door of the citizens advice bureau, the law centre or the local practitioner saying, “I am a problem of fact” or, “I am a problem of law.” They come as individuals with a particular issue that needs untangling by somebody with expertise.”

Similarly the CPAG Welfare Benefits and Tax Credits Handbook 2011 summarises the situation as follows “Appeals are taken on all sorts of issues – disputes on facts or the law or both. The law tells you which facts are relevant and the facts tell you which parts of the law you need to consider.”

The usual function of the lower tribunal is to consider the facts/evidence in relation to statutory legal entitlement, and vice versa. Often original decision makers make errors in applying the law, this is pointed out in the appeal form or letter to the benefits agency or local authority. Sometimes that in itself will lead them revise their decision before it gets the tribunal, or if the appeal progresses to tribunal, then the Judge will usually apply the law correctly. So in that sense there will now be a safeguard if a legally aided submission can be made to the tribunal on a point of law, about the correct application of the law.

Appeals to the first tier can be made against most decisions taken on behalf of a Secretary of State, a local authority officer or an officer of the Revenue (all collectively called “decision makers”). Whilst the decisions appealed against can be decided on the facts available to the decision maker, and/or their interpretation of those facts in light of new evidence presented to the tribunal, all of these decisions under review are taken on the basis of relevant legislation on social security benefits and tax credits. To appeal you need to identifying specific grounds under which you consider the decision to be incorrect. Thus for an ESA appeal the grounds are usually based on interpretation and application of the appropriate descriptors contained within a schedule of the ESA regulations.

Whilst in some case it may be facts rather than the law which are the subject matter of dispute, this often involves interpreting the wording of a particular statute, on which many tribunal cases can and do turn, or the relationship between two different statutes, or the application of a binding case law precedents to the facts. For example, the legal test for entitlement/receipt of higher rate disability living allowance (DLA) is contained in section 73(1)(a) of the Social Security Contributions and Benefits Act 1992 which provides for entitlement to higher rate mobility component of DLA if a person “is suffering from such physical disablement that he is either unable to walk or virtually unable to do so.” This test has been subject to a myriad of caselaw at both levels of the tribunal as well as the Administrative Court as to what evidence meets this test, what virtually unable means, and what conditions apply (with several cases for example involving severe disabilities on the cognitive spectrum whereby someone is physically capable of walking, but not mentally able to do so). Both the evidence and the caselaw, and the binding precedents they create for future decisions, is crucial.

Presenting Officer (representing the DWP or Local Authority) are supposed to attend the tribunal “where the facts and law are considered to be complex.. where complex legal arguments have been raised or where contentious case law has been referred to..(or) where the appeal involves new legislation which needs a ‘bedding in period.’’ Currently, presenting officers attend in around 20 per cent of appeals, though the Judicial head of the Social Entitlement Chamber has suggested that this criteria from DWP applies to around over 40 percent, and that it nearly all cases the presence both of presenting officers and independent advisers speaking for the appellant is helpful. This suggests that up to half of cases may involve points of law in the formal sense of disputed legal points, but we would suggest that in reality most cases will involve points of law, and certainly all cases involve reference to law.
Preparatory and evidential issues

In the above context of points of law and fact, the importance of submitting the right evidence required to meet the civil standard of proof, and the value of the preparation of the evidence alongside the appeal claim cannot be overstated. In applications to appeal about disability benefits and employment and support allowance (ESA) for example, specialist advisers play an essential role in ensuring that claimants have the right sort of medical evidence from their own GP, consultant or mental health professional to challenge assessments made by the DWP’s medical assessors. The right sort of evidence for ESA and disability benefits will address whether the claimant has limited capability for work in relation to their ability to perform certain activities relating to physical function, and to mental, cognitive and intellectual function, the severity of their care and/or mobility needs all of which have legal test. Other typical legal issues which get resolved through evidence include the living together test, and residential occupancy. For example:

One client came to a bureau some time after her appeal had been heard and lost. She had got very strong evidence from her GP, her physiotherapist and her consultant all of whom had stated very clearly that she was not able to work at that time. She had felt too ill to attend the appeal in person but had assumed that the letters were so strong that it didn’t matter she couldn’t attend. Neither she nor the doctors realised that the evidence which was needed was about the descriptors, not an opinion on whether or not she could work. The adviser who talked to the client and read the letters from the doctors felt it was very unlikely the appeal would have been lost if the client had had support to gather the relevant evidence.

Another client came to a bureau to appeal a decision that he was not entitled to attendance allowance (AA). He had been assisted to complete the attendance allowance form by his daughter. When the adviser saw the form they noted it had a great deal of detail about all the chores the family helped him with during the day, he was receiving a lot of help each day but very little of the help would count as care for the purposes of AA. However when the adviser questioned him about night time came it emerged he was sleeping in a chair at night because of the difficulty he had getting out of bed to go to the toilet. He had not realised that help reasonably required could count even if there was no-one there to help him but that all the help he was actually receiving did not count for the purposes of AA. When an account of his night time needs was sent in, together with medical evidence confirming that his medical condition was likely to mean he would need to get up several times in the night the decision was revised without needing him to go to a tribunal.

We would therefore like to see any criteria for legal aid on points of law to include reference to civil evidence in relation to points of law.
Procedural and gateway issues

The Tribunals Courts and Enforcement Act 2007 reconstituted social security tribunals into a new jurisdiction known as the “Social Entitlement Chamber.” Under these arrangements, the adjudication process is managed by a specialist legally qualified judge, with all tribunal hearings chaired by a judge. The Tribunal operates on the basis of legal procedure rules closely modelled on the Civil Procedure Rules used in the civil courts. Since last year, the Tribunal Service has merged with the Court Service and now share the same case management processes and systems. Increasingly, given the shortage of tribunal venues, social security tribunal hearings are taking place in County and Magistrates Courts. In our experience, clients find the whole process of going to appeal very frightening:-

A 60 year old woman in Wales was refused ESA and appealed came to the CAB to complain about the process. She was notified that her hearing was to be heard at the Magistrates' Court. She attended the hearing but was only awarded 12 points for physical descriptors. She was therefore found to be ineligible for ESA and her appeal was refused. The client believes that she did not get a fair hearing for a number of reasons. Firstly, the setting of a city Magistrates' Court, with ongoing criminal trials, unfit for purpose for Welfare Benefits Appeals. Even as she approached the entrance to the Court was almost knocked over by a person running out of the Court shouting 'I'm free! I'm free!'. The staff at the Court were rude viewed the presence of benefits appellants as an annoyance, and did not direct her to the correct court room which involved climbing 84 stairs to get there as the lift was out of order, causing stress and pain as she was suffering from spondylolisthesis and arthritis. She was then left waiting outside Court room 7 as no one came out to collect her. As the court room was designed for criminal proceedings, it felt very formal and intimidating; she felt like a criminal on trial and this affected the quality of her testimony and evidence at the hearing.


Another CAB in Wales saw a very vulnerable young man with mental health issues. Unable to even open his own mail, he had failed to attend an appointment for a work capability assessment and so his employment and support allowance had stopped. He did not appeal in time. However the LSC caseworker he saw successfully put forward grounds for late appeal and provided support with the appeal in putting together relevant evidence and arguments. His appeal was successful at Tribunal. Without legal aid, the bureau would not have been able to provide the in depth work or provide the continuity of advice from one caseworker.

A Wiltshire CAB completed a DLA form for a 5 year old autistic boy. The form clearly demonstrated that he required supervision during the night, and when outside because of his behavioural problems. He was awarded middle rate DLA for the care component; the CAB appealed this decision at which point the DWP revised its decision and increased the care rate to High Rate, but did not award a mobility element. The CAB appealed again, since the original form clearly detailed his extremely disruptive behaviour when outside which required constant physical restraint. The submission was supported by his doctor and the school. The tribunal was held at the magistrates court which the client and family found distressing, and the panel seemed to want the hearing over as soon as possible. Taking only 15 minutes, the appeal was dismissed and even the DWP representative seemed taken aback by the abruptness of the hearing. The CAB requested written reasons for the decision as the tribunal chair had made an error of law in the ruling, and appealed to the upper tribunal to have this decision set aside. The upper tribunal agreed that the first tribunal had failed to apply the law correctly and we gave leave to have the appeal re-heard. Once again the CAB prepared a submission for the second tribunal, and were given a date, but this was cancelled as the panel included the same Chair as the first tribunal. However, the process did trigger a reconsideration by the decision-maker, and finally a letter was sent to the family telling them that they met the criteria for high rate mobility.

Consequently, we do not recognise the scenarios presented by Government that the Tribunal is “user friendly” and suited to those with the lowest literacy levels, serious disabilities, experiencing financial hardship, or other vulnerabilities, progressing the own case without any professional advice. It is often only through advice on the appeals procedure, that many cases will ever get to considering points of law before the tribunal, or obtain a reconsideration on a point of law without having to attend a stressful hearing. In the Commons debate, the Lord Chancellor suggested it might be possible to devise a system whereby tribunal judges may certify a whether a case involves a “point of law.” We envisage this may be possible by the tribunal issuing directions, or through a interim application process. This however, raises a question over whether the proper role of tribunal judges is to be the gatekeepers to welfare legal aid. As a minimum safeguard we would suggest a system whereby any person should be able to apply via an accredited advice agency to a Tribunal judge for a determination for legal help in the preparation of a case involving a welfare benefits review or application for supersession, where it appears that the case requires the intervention of a suitably accredited welfare benefit specialist in order to contest a decision of the secretary of state.

A clear policy on welfare legal aid

Advice on legal issues arising from benefit reviews and appeals will become ever more important over the next few years because the benefits system is undergoing massive change and transformation under the Welfare Reform Act 2012, and will involve the re-assessment of every single benefit claimant. We support the Government’s objective to deliver a streamlined, simpler and less contentious system in which decisions are clearer up front, but it is not realistic to apply this expectation to every case. Problems such as work capacity tests, applying new rules on conditionality, childcare and work hours, correct allocation of ESA claimants as between work and support groups, and migration into personal independence payments and universal credit, are all likely to raise issues that can only be resolved on review or appeal.

So whilst we welcome the Government’s amendment and acceptance that legal aid for social security cases reaching the upper tribunal merit legal aid (ie appealing the legal basis of any decision from the Social Entitlement Chamber), by the time a legal mistake has made its way into the Upper Tribunal Administrative Appeals Chamber (UT(AAC)), the damage is already done, and whilst the Second Tier can look at the law, crucially it cannot look again at the original evidence on which the decision of law was based, or consider new evidence. It is therefore extremely welcome that the Government have undertaken to extend legal aid for the lower tribunal on the same basis.

Given the issues and problems we have raised above, we would argue that in delivering on this undertaking to provide for legal aid in the lower tier tribunal, the Government will need to be practical, realistic and clear about the context and meaning of ‘points of law.’ We would suggest a presumptive approach is required whereby the focus is on the legalism of the process, not just the legalism of the issue under dispute, recognising law and evidence are connected, and that all appeal claims have a legal basis.

We therefore support Lord Bach’s proposed amendment which would establish such clarity on the face of the Bill. "


www.dropbox.com/s/6iux6yjua2elmll/pingpong1.doc