Evidence submitted by the Child Poverty
Action Group (CPAG) (LAR 109)
INTRODUCTION—ABOUT
CPAG
CPAG is the leading charity campaigning for
the abolition of poverty among children and young people in the
UK and for the improvement of the lives of low income families.
CPAG aims to: raise awareness of the causes, extent, nature and
impact of poverty and strategies for its eradication and prevention;
bring about positive policy changes for families with children
in poverty; and enable those eligible for income maintenance to
have access to their full entitlement. We are a national organisation
and we are based in Islington. We also have an office in Glasgow
which serves Scotland.
In line with our charitable aims, we produce
publications, undertake training and second tier advice work,
and carry out test case work in social security law. We also undertake
policy work and we campaign in this field. CPAG produces the leading
publication on welfare rights; the Welfare Benefits and Tax
Credits Handbook, which is updated annually, and is used as
the standard text on social security by Citizens' Advice Bureaux,
Law Centres and solicitors. The book is also used by local authorities
and by the Department for Work and Pensions and HMRC. We also
edit the Social Security Legislation Volumes I-IV and we
produce the Housing Benefit and Council Tax Benefit Legislation,
which again are standard texts on social security. All these publications
are listed by the LSC as essential texts required to meet the
supervisor standard in Welfare Benefits. We produce other associated
rights-based publications. We are also one of the foremost providers
of training in social security. Lord Bingham described CPAG as:
"...a key player in making complex and impenetrable
social security law work for children and families..."
Test case work
CPAG pioneered the strategic use of test cases
in the UK, and has been undertaking work in this field since the
1970s. We have found this to be an effective means of promoting
social justice through the courts. Low income has been shown to
be one of the major indicators for a child's life chances. By
helping to get better interpretations of the law relating to social
security for claimants, and drawing attention to policy issues
facing those in poverty, our test cases promote CPAG's aims of
bringing about positive income changes for children in poverty
and enabling those eligible for income maintenance to have access
to their full entitlement. We would argue that this is also in
line with the government's policy;
"Our historic aim, that ours is the first
generation to end child poverty forever... It's a 20-year mission
but I believe it can be done."
Tony Blair, Toynbee Hall, 18 March 1999
CPAG is a national organisation. We believe
our national perspective is valuable. Most social security benefits,
with the exception of housing benefit, are administered and the
rules for them are set nationally. The Department for Work and
Pensions and HMRC are both organised nationally.
CPAG brought the leading case on the standing
of organisations to bring cases on behalf of groups of claimants;
R v Secretary of State for Social Services ex p Child Poverty
Action Group [1989] 1 AER 1047, and we also brought the first
case on the court's ability to grant protective costs orders in
public interest cases R v Lord Chancellor ex parte CPAG [1999]
1 W.L.R. 347, which remains an important authority. CPAG has
brought some of the leading cases on social security law, including:
Mallinson v Secretary of State for Social
Security (1994) 1 WLR 630 (HL): This case concerned the entitlement
of a blind person to disability living allowance, and it remains
one of the main authorities on the interpretation of the statutory
test for entitlement to this benefit generally.
Howker [2003] ICR 405 (CA): The court
held that if the government misleads a statutory advisory body
on social security regulations, the regulations then made are
unlawful. This case was described by Michael Fordham as one of
the top 20 cases of 2002, and illustrated "the logic of a
meaningful principle of procedural ultra vires": [2003] JR
Willis (2002) 34 EHRR 21 (ECtHR): This
was a case in the European Court of Human Rights which found that
failure to pay widowers' benefits to men was an unlawful and discriminatory
deprivation of possessions contrary to Article 1 of Protocol 1
and Article 14 of the ECHR.
T and S v Secretary of State for Health and
Secretary of State for the Home Department (2002): This case
was about whether failure to provide HIV positive asylum seeker
mothers with milk tokens infringed the human rights of the mother
and her baby. Breastfeeding risked transmitting the virus to the
baby, and the only means of support to the mother was NASS payable
at 70% of income support, in itself a subsistence benefit. This
case, backed by a campaign by CPAG together with partner organisations
and Neil Gerrard MP, produced a change in Home Office policy so
as to include an additional payment to asylum seeker parents of
children under 3.
R(DLA)3/06: A tribunal of social security
commissioners considered whether it was necessary for the claimant
to have a recognised or diagnosed medical condition in order to
claim DLA, and also set down guidelines on when, if ever, a child
should be called to give evidence before an appeal tribunal.
Our ongoing cases include R on the Application
of RJM v Secretary of State for Work and Pensions. This is
a case about whether the failure to pay the disability premium
in income support to claimants without accommodation discriminates
against them in the enjoyment of their possessions contrary to
Articles 1P and 14 of the European Convention on Human Rights.
CONSULTATION QUESTIONS
General—for all respondents
1.1 Do you have a particular interest in legal
aid? If so, what?
We set out above CPAG's history of test case
work. We take on a small number of cases selected on the basis
of our test case strategy, which is briefly summarised as follows:
— To seek a ruling on an untested point
of law or to overturn or confirm a prevailing judicial interpretation
from the perspective of promoting the rights of claimants.
— To take cases which will have significance
not only for the person bringing it, but for others too.
— To use test cases as a focal point
for campaigning and lobbying work.
1.2 If you are a lawyer, do you undertake
legally aided work? If so what types and for how many years?
CPAG has a license only contract to carry out
legal aid work. Most of our cases in the UK courts are legally
aided, although we bring cases before the Social Security Commissioners,
which are outside the scope of public funding and can only be
funded by discretionary legal aid. We also cannot get public funding
to bring cases in our own name. We have a separate contract to
provide Specialist Support.
1.3 If you are a legal practitioner how do
you think these reforms will impact on your business?
It is likely that if the reforms are enacted
as proposed, CPAG will have to stop undertaking test case work.
It is unlikely CPAG would meet the proposed £25,000 costs
limit for legal aid contracts. CPAG generates roughly £25,000
a year in test case income on average, but this is not all from
public funds. We often recover costs from the other side, and
so make no claim on the legal aid fund even where the claimant
is legally aided.
We have a license only contract, and it is proposed
that these should cease. Unless there are exceptions to these
rules for cases like ours, we would lose our contract. We have
no alternative funding for bringing cases in the UK courts, and
it would not be viable for us to undertake this work without legal
aid. That would undermine our test case work overall to the point
where we could not continue with it.
If that were to happen it could impact on the
work of the organisation as a whole. CPAG might no longer be able
to employ lawyers, who not only carry out test case work but also
feed into its policy and campaigning work, particularly in terms
of examining and commenting on proposed legislation. CPAG has
employed a legal officer since the early 1970s. This has always
been an important feature of our work, and we think it is a valuable
model.
We have been reassured by the CLS in meetings
that the proposals in respect of CLACs and CLANs will be sufficiently
flexible to allow our work, and the work of organisations like
us to continue, but we have not had this confirmed in writing.
We have also not had any assurance in respect of the proposals
for minimum contracts and license only contracts, and the consultation
documents do not contain any proposals to allow for exceptions.
1.4 How many fee earners are there at your
firm?
CPAG's legal team consists of a solicitor, with
15 years' post qualification experience, and a legal officer who
is a barrister with 14 years' call.
1.5 Approximately what proportion of your
firm's work comes from legal aid?
CPAG generates income from its training and
publication activities and has an annual turnover as an organisation
of about £2,000,000. Legal aid income represents a small
proportion of this, but it is significant because of the importance
of the work it funds. See comments under 1.3 for more details.
CIVIL, FAMILY
AND IMMIGRATION
LEGAL AID
CPAG does not accept that there is any need
for further reform of civil legal aid. The Lord Chancellor accepts
that spending in this area has fallen by 24% since 1997. Since
spending is under control, and there has been considerable upheaval
in civil legal aid over the last few years, we do not accept the
case for further changes.
REPLACEMENT FOR
TFF (SECTION 6)
We responded to the initial consultation on
fixed fees from the perspective of an organisation which had recently
started a contract to provide a small number of matter starts.
We were concerned at the time that the proposals would not accommodate
organisations like ours and that we might have to give up our
contract because it would not be worthwhile for us to administer
so small a number of matter starts which were so severely costs
limited. We have in practice found the contract difficult to administer,
and understand it is now to be varied so we will go back onto
a license only contract.
We now comment on these proposals from the perspective
of an organisation which may no longer be directly affected by
them, but has concerns about how they may affect the provision
of advice to claimants. We comment particularly on welfare benefits
advice, which is our area of expertise.
In CPAG's view, access to good quality welfare
rights advice and representation services is an important part
of government's fight to combat child poverty. We think money
spent on this is amply repaid in ensuring income maximisation
for low income families and helping claimants assert their rights
as citizens together with all the associated benefits that come
with preventing and alleviating poverty such as improvements in
health, housing, education and employment.
6.1 Do you consider that any other types or
categories of work should be excluded from the scheme? If so,
please explain why.
We do not have any comments on this particular
aspect of these proposals.
6.2 Which of the 2 options set out for the
replacement of the TFF scheme do you prefer and why?
We are concerned about both options. We are
aware that there are widespread concerns that the levels of payment
have not been set high enough for work under either option to
be economically viable, and that the scheme is not sufficiently
flexible to allow for exceptional cases, and we believe that both
these issues need to be addressed before the proposals are taken
forward.
It is feared these proposals will impact most
on the most vulnerable clients, such as those who have mental
health problems, language problems, or disabilities, which mean
that advising them is more time consuming, and those who have
the most complex cases. It may not be economic for solicitors
and advisers to take on cases which will involve work that they
will not get paid for.
It may be that under the national scheme there
will be regional winners and losers; this seems likely to lead
to further advice deserts in areas where providers lose out. We
have seen evidence from solicitors' firms that they will lose
under either scheme, although potentially less so under the regional
scheme.
We note the proposal to move to the national
scheme in the longer term, using savings, particularly from London,
to pay for more services in areas where these are scarce, or non-existent.
Whilst we are concerned about advice deserts, we fear this proposal
could make it uneconomic for services in London to continue, and
may result in advice deserts there instead. We are not convinced
that either Lord Carter or the LSC has got to grips with why some
cases take longer than others, or why costs are higher in some
areas than others. We think the answer to the problem of advice
deserts probably lies in better resourcing.
Lord Carter assumes that longer case times for
welfare benefits and debt in the NfP sector are caused by inefficiency,
and the LSC seems to be making a similar assumption about longer
case times in London. There does not appear to be any evidence
to back up these assumptions. It is our understanding that there
has not been any research to find out why some cases take longer
than others. There may well be other factors at work; NfPs who
traditionally have provided the bulk of advice on welfare benefits
and debt, may have greater expertise and may be taking on more
complex cases. Similarly specialist firms taking on complex work
with higher associated costs may be more concentrated in London.
In our view the causes behind these differentials need to be properly
investigated before these proposals are taken any further.
6.3 Do you agree with the proposals for payment
of tolerance work? If not please explain why.
We do not think that the proposal to limit and
then phase out tolerance work is consistent with the CLS overall
aim of providing a holistic service to claimants. It is CPAG's
experience from our specialist support work that tolerances enable
suppliers whose main area of expertise is in another area such
as family to provide welfare rights advice as part of a seamless
service to claimants who would otherwise have to be referred elsewhere.
6.4 Do you agree that the scheme should apply
to work done by NfP providers? Do you agree that there should
be a transitional scheme and what are your views on our initial
proposal?
We are deeply concerned by the suggestion in
Lord Carter's report that unless they restructure, NfP organisations
will lose 50% of their legal aid funding. As 60% of contracts
for welfare benefits and debt advice are held by this sector these
reforms are likely to impact most severely on those areas of advice.
We believe that this will be a serious blow to the government's
anti-poverty strategies. We also think it will impede the LSC's
core objective set out in its strategy for the CLS at section
2; "in promoting the availability of legal and advice services
through the CLS and in the LSC directly funding such help, is
to protect and promote peoples' rights" and its aim to prioritise
those who are socially excluded.
We believe that the LSC's decision to fund work
by NfPs was a progressive one, and that these proposals may undo
much of the good work that has been done. As we explained in 6.1
above, we are concerned that welfare benefits and debt work in
the NfP sector may have been unfairly singled out for criticism.
If fixed fees are applied to the NfP sector then this needs to
be done in a way which ensures the viability of their continued
work.
PROPOSED UNIFIED
CONTRACT SECTION
11
11.1 Do you agree with our proposal that eventually
all providers, including NfP organisations, will be covered by
the same contract terms? If not, why not?
We would be concerned about any proposals to
restrict the services offered under any current contracts, or
to reduce the ability of NfP organisations to provide a holistic
service for claimants, for instance by taking level 1 work away
from NfP organisations despite the continuing need for such work
to be carried out.
11.2 Do you agree that there should be a minimum
income requirement, if not why not?
We strongly disagree with this proposal. As
far as CPAG is concerned, unless we radically alter the way we
work, or unless exceptions are allowed, it would mean we would
lose our contract and, as explained above, the likely result of
that would be the end of our test case work.
Quality
In our view the work we do is valuable and of
a high quality. We believe that exceptionally high standards are
ensured by the fact that our legal team also engages in work in
publications, training, policy and campaigning. For example, the
fact that we lobby on bills as they go through parliament, or
comment on regulations put before the Social Security Advisory
Committee means that we are aware of the detail of changes in
the legislation long before other organisations which do not undertake
this work. We can also back test cases with campaigning and policy
work; a highly effective means of bringing about change. In a
field that changes as constantly as social security, this is an
important advantage. Our legal aid casework benefits from this
background work all of which is carried out without any cost to
the LSC.
Quantity
It is our understanding that the reason for
introducing this requirement is not because of quality concerns,
but because the LSC wants to implement Lord Carter's proposal
to move towards fewer larger suppliers. We are not convinced that
bigger is better in terms of legal aid suppliers. We believe that
our test case work, although low volume, has a high impact in
terms of numbers affected because we target cases which have a
broader significance than the individual claimant. So for instance
R(DLA)3/06 sets a new benchmark for consideration of all DLA cases
where the cause of the claimant's condition is uncertain, and
for cases where children may have to give evidence at tribunals.
This fits in with the CLS strategy "Making legal rights a
reality" which talks about focusing on strategic action including
"identifying and bringing test cases". It also means
good value for money.
It seems we are not the only ones whose work
is at risk. Lord Carter says that 1,700 firms carry out less than
£50,000 worth of civil legal aid work, although most of these
have legal aid contracts in other areas. It is not entirely clear
to us whether if the proposal to fix a limit at £50,000 all
of them would lose their contracts to carry out civil legal aid
work. If that were right, then this would be a very substantial
reduction in the number of suppliers. In their February 2004 report,
"Geography of Advice", Citizens' Advice reported that
over the previous 10 years the number of firms carrying out legal
aid work had decreased from 11,000 to 4,361, a very substantial
decline in the number of suppliers. These proposals seem likely
to decrease numbers still further.
Larger scale suppliers
We believe that effective legal advice and representation
is rooted in communities rather than imposed centrally. We believe
that large suppliers are likely to be geographically centralised
and consequently not so well placed to work with local communities
as smaller local suppliers.
We do not think that Lord Carter's suggested
model of large scale firms with a few equity partners at the top
effectively exploiting the work of low paid unqualified staff
to secure large incomes for themselves fits the ethos behind legal
aid work. We do not think that good quality solicitors and advisers
will want to work at large faceless organisations where they will
be poorly remunerated for providing poor quality low cost services.
CLACs and CLANs
We are concerned about how these proposals will
interact with proposals to bring in CLACs and CLANs. As currently
framed, these proposals make no allowance for single issue national
organisations such as CPAG, Shelter, Public Law Project and others.
See under 1.3 for further comments on this.
If CLACs and CLANs subcontract areas of work
to different suppliers, this will result in a complex web of contracts
that organisations may have neither the skills nor the resources
to administer effectively, and may prove unworkable.
We understand that once a CLAC or CLAN has been
set up no other contracts will be awarded to do legal aid work
in the same categories of law in the area. We fear that that,
together with the Carter proposals, the result could be that advice
provision in future may be radically diminished.
Competition
Lord Carter favours best value competition based
partly on price. We are concerned that competition is likely to
drive down standards, and if it drives down costs will only do
so in the short term. Once providers have lost contracts they
will leave the market, and they will not be there for the next
bid round.
Do you agree with our proposal to introduce a
minimum income requirement of (a) £25,000 or (b) £50,000?
CPAG could not meet either of these requirements.
Without any information about the different impact either alternative
would have on supply, it is difficult to comment on which would
be better, or from our point of view, less bad.
What do you think that the minimum income requirement
should be and why?
We do not think there should be a minimum income
requirement, or if there is, exceptions should be made for cases
like ours.
And if you do agree, which of the proposed options
for the period over which the limit would be calculated do you
prefer and why or do you have an alternative proposal?
As there is no modelling of the impact of these
proposals if the limit is calculated over different periods we
do not have enough information to comment generally on this. Our
legal aid income varies from year to year. Our test case work
is strategic so there are times when there is more activity than
at other times. It is always possible that in a particular year
we would not be able to meet whatever the minimum income was.
Presumably we would then lose our legal aid contract. It is not
clear from the proposals whether once lost, a legal aid contract
could ever be regained.
CARE PROCEEDINGS
GRADUATED FEE
SCHEME
CPAG has no legal expertise in this area, but
in line with our aims, we would oppose any proposals that will
have a negative impact on the ability of parents and children
to find high quality advice and representation in care proceedings.
FAMILY HELP
CPAG again does not have legal expertise in
this area. We publish the Child Support Handbook, which is written
by external authors. Because of lack of funding, we do not currently
advise on child support, although we believe there is substantial
unmet need for advice in this area. We are concerned that family
breakdown is a major cause of poverty. We therefore believe there
should be well-funded sources of advice available so families
can be helped to minimise the impact on their lives.
IMPACT OF
THESE PROPOSALS
ON CHILD
POVERTY
The Work and Pensions Select Committee inquiry
into child poverty in the UK recommended that:
"A key feature of the national strategy
should include poverty proofing of all department policies across
Whitehall and the devolved administrations."[87]
The DCA has recommended that other government
departments should consider the impact of their policies on the
legal aid budget. We believe that these reforms will have a negative
impact on child poverty by reducing access to welfare rights and
social welfare advice, and that this in its turn will have consequences
elsewhere in government. We recommend that the DCA needs to test
the impact these proposals will have on child poverty and ensure
that any reforms are poverty-proofed.
October 2006
87 Work and Pensions Committee, Child Poverty in the
UK, 2004 HC 85-1 para 290. Back
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