Does anyone know if the lack of a mention of Welfare Benefits for Upper Tribunals is because the paperwork hasn't caught up with the amendments or is this (and the possible SI for tribunals on a point of law) work all expected to come within Exceptional or licensed work?
It's a very good point. It is entirely unclear how exceptional cases will be brought in the areas coming out of scope and who will bring them. This also needs to be raised and challenged. Let's hope the networks aren't too punch drunk after LASPO to respond on the post bill issues. They will need to move quickly.
Post by nickd (Mylegal) on May 8, 2012 22:59:10 GMT
Yes, in response to point made earlier by Jman regarding WB bids for upper tribunal it would be good to see some clarity. I anticipate MOJ view on this work is will be 'exceptional' - not convinced this is a satisfactory solution at all.
Plus of course we still have Clarke's hint of a concession on a 'point of law' in FTT WB proceedings , he left it hanging in the air after Tom Brake took his foot off the pedal in the debate in the HOC on April 17th when he dropped his push for an amendment in lieu of 168. He may have forgotten - I haven't. Plenty coming up on Mylegal over this but takes a while to put it together; bear with it.
Much as though I realise the reality of LASPO, our MOJ should not be let off the hook when it comes to any prospect of them having to fulfil a duty over providing legal aid for this.
So how will it merge into these bids is my question, as a later stage addition on a stand alone invitation? As far as I'm concerned the case for WB in FTT on a point of law is a good one. I don't share Clarke's view they would be few and far between. Almost all FTT proceedings carry some point of law - it's why we have tribunals to rule over them.
Looking at the Actl I'm not sure that I feel that UT cases could be exceptional.
This is because s. 10 of the Act provides
s. 10 Exceptional cases. (1)Civil legal services other than services described in Part 1 of Schedule 1 are to be available to an individual under this Part if subsection (2) or (4) is satisfied
.
Upper tribunal representation is included at paragraph 8 of Schedule 1 so I don't see how it can be an exceptional case
i.e.
Appeals relating to welfare benefits. 8(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. .
Exclusions (2)Sub-paragraph (1) is subject to— . (a)the exclusions in Part 2 of this Schedule, with the exception of paragraphs 1 and 15 of that Part, and . (b)the exclusion in Part 3 of this Schedule. .
Definitions (3)In this paragraph “social security enactment” means— . (a)the Social Security Contributions and Benefits Act 1992, . (b)the Jobseekers Act 1995, . (c)the State Pension Credit Act 2002, . (d)the Tax Credits Act 2002, . (e)the Welfare Reform Act 2007, . (f)the Welfare Reform Act 2012, or . (g)any other enactment relating to social security.
Djanogly responds to a Parliamentary Question about Clarke's comment that legal aid could be made available in welfare benefits cases if a point of law is certified. From They Work for You (this has also been copied to this thread at nickd's request)
:'Hi - I asked a question about whther this tender would cover welfare benefits and this is the reply received today
(Thank you for your message.
We are not currently tendering for Welfare Benefits. Further information regarding future contracting arrangements for this category can be found in the Legal Aid, Sentencing and Punishment of Offenders Act FAQs – May 2012 available on our website:
This is what the link says
What will be happening to clinical negligence and Welfare benefits contracts?
Further to the passing of the Legal Aid, Sentencing and Punishment of Offenders Act, we are considering the position on clinical negligence and welfare benefits work that remains in scope. We will provide an update on our website as soon as we can.
Djanogly asked again in Parliament what is happening re legal aid for first tier tribunals; again no timetable set out-link to question and answer below
Post by nickd (Mylegal) on Jun 26, 2012 21:00:35 GMT
What's happened to welfare benefits?
The answer is they've become utterly chaotic and there's never been a more appropriate time to press for the continuance of some form of specialist help. We are still owed what remains 'outstanding' in terms of legal aid.
The ESA appeal chaos continues to account for around 75% of our workload, it's all we are seeing on most days. It's becoming an absolute nightmare for our clients, they are coming in at their wits end with these relentless reforms. The standards of decision-making has undoubtedly fallen as departments find themselves having to comply with far too many hidden targets.
Djanogly keeps stalling on the much promised concession on 'points of law' cases in the First Tier Tribunal and the MOJ appears to have forgotten it passed amendment 169 in LASPO for legal aid for upper tribunal work and beyond. What we should be doing is pushing our respective MP's on these outstanding issues but what they will need to see is some evidence which persuades them that the work we do is 'legal work'.
On Mylegal I'm currently trying to push the work of the welfare benefit specialist as best I can. During the 'CABLive' week on Twitter I tried to promote the work of benefit specialists by illustrating the work we did in our own bureau; you can read about it here. The ESA appeals are only the start of what's to come as we steer towards the implementation of Universal Credit & Personal Independence Payment, here's the link to the draft regulations. It gets even worse when you read what they are proposing by way of amendments to the Claims & Payments regulations.
What I'm trying to do is set up an area on the forum where specialists can cite examples of cases which illustrate the need for our intervention in welfare benefit work before it reaches the Upper Tribunal. It stands to reason that if you are appealing to the Upper Tribunal on a point of law then the issue of law must have arisen out of the proceedings in the lower Tribunal. What we need to do is use the 'Guerilla tactics' advocated by Lord Bach when he spoke at the winding up speech of the J4A campaign over the need for regulatory changes to LASPO. It makes no sense given the problems we must all be seeing to let this go but we need to ramp up our argument by saying 'this is legal work'. I'm sure there must be many examples out there, I can think of many; but what we could do with are more examples from all you specialist agencies out there? Let's not be forgetting that all the dumbing down of statistics is only hiding a problem, benefit appeals remain a major cause for concern.
If anyone has any ideas on how to go about collating this information then please do share it; I'm more than happy to set something up but it would be great to see some real participation on this one. Let's use this opportunity to state our case on the concession and let's do so as persuasively as we can. Badger your MP's folks, get your client's consent and take a specialist case or two, or three and make sure they know how this work is far from just generalist advice. It's best coming from the people who actually work at specialist level because they are most likely to be able to illustrate the true nature of their work. Let's not forget how we are achieving success rates in Tribunal work of around 80% - results which we are getting because we are specialists. It's at the regulatory stage where all this starts to unfold, we can see it in IB to ESA Conversion cases, there's loads more to come.
Looks like the pressure is being kept on. Now David Ward MP, one of the few Lib Dems really to speak up on legal aid during LASPO, with a devastating attack in the Commons on the bill as it was going through, also asks Djanogly to give a specific date for what is happening on legal aid for welfare benefits at First Tier. Link below
( By the by, this is what David Ward said in November last year "Someone once told me that the world is divided into 2 groups of people. There are those who, when they see somebody walking down the street with a walking stick, believe in kicking the stick away because it will make that person stronger, and there are those who believe that if they kick away the stick, the person will just fall over. We are in grave danger of making some of those who by definition are the most vulnerable in our society, fall over and we will still have to be there to pick them up, at even greater cost to the public purse. It does not make sense; we should not do it")
