Legal Aid, Sentencing and Punishment of Offenders Bill

Memorandum submitted by LASA Charity UK Limited (LA 01)

Summary

We wish to challenge the basis for the removal of welfare benefits advice from the scope of civil legal aid (clause 8 and paragraph 15, Part 2, Schedule 1) under the Legal aid, sentencing and punishment of offenders bill.

Introduction

1) Government proposes to remove welfare benefits from the scope of legal aid. Statements have been made to the effect that welfare benefit problems are "general" and not "legal" in nature [1] , and therefore should not be covered by the legal aid scheme. Additionally, the government response stated that "we do not consider that most cases before the tribunal will be sufficiently complex" [2] .

2) We challenge the basis of both of these assertions, as there is clear proof of the legal nature and the complexity of welfare benefit problems, as well as little evidence that legal aid funding is contributing to welfare benefits cases being taken before tribunals unnecessarily.

General advice or legal advice?

3) The Legal aid, sentencing and punishment of offenders bill lists six separate pieces of primary legislation (Acts) in paragraph 15, Part 2, Schedule 1, detailing what is out of scope under "social security", as well as a catch-all statement about "all other social security enactments".

4) In terms of the Acts alone, these six pieces of legislation contain hundreds of clauses and schedules, detailing entitlement conditions for the range of welfare benefits, tax credits and pension credits that can be claimed by individuals.

5) The reference to "All other social security enactments" covers literally thousands of statutory instruments and regulations related to the six Acts, as well as more than 20 volumes of decision-makers guidance and thousands of pieces of case law further interpreting the meaning of primary and secondary legislation.

6) Child Poverty Action Group’s Welfare Benefits and Tax Credits handbook is more than 1,600 pages in length and is of sufficient complexity that we include a dedicated section on simply using the handbook in our Welfare benefits overview training course.

7) Thus, we feel that it is clear that disputes arising from welfare benefits, tax credits and pension credits are legal in nature and are set against a backdrop of legal complexity that is exceptionally difficult for the average citizen to understand, let alone resolve, without assistance.

Welfare reform

8) There is an unprecedented level of welfare reform currently occurring, with changes to rules of entitlement now being implemented and also being phased in over the coming years.

9) These include:

· Planned migration of 1.5 million incapacity benefit claimants to employment and support allowance.

· Local housing allowance changes that will see many people struggling to pay their rent.

· Disability Living Allowance to be replaced by the Personal Independent Payment.

· Introduction of the Universal credit from 2013.

10) The impact and success of these reforms, as well as the Work Programme, will all be significantly undermined if people cannot get legal advice on their rights, responsibilities and duties.

11) In particular, it is worthwhile noting that the current Welfare Reform Bill going through Parliament is being introduced because, in the words of the Secretary of State for Work and Pensions Iain Duncan Smith [3] :

""It will cut a swathe through the massive complexity of the existing benefit system"

12) This statement feels very much at odds with claims that welfare benefits problems are not of sufficient complexity to merit legally aided advice on a face to face basis. We also detail below the knock-on impacts to tribunals that can arise when individuals are unable to resolve their dispute prior to any requirement for a formal hearing.

Tribunals and Representation

13) There were 135,000 welfare benefit matter starts of face-to-face legal aid advice in 2009/10 (an increase of 20,000 on previous year). Over the same period, there were zero cases of representation funded, (a decrease of 10 on previous year).

14) Thus, we feel the statement that the complexity of welfare benefits is not sufficient to be bought before tribunals to be inherently misleading and unsupported by the facts. The miniscule level of funding awarded for actual representation, compared to the significant volume of face-to-face interventions, demonstrate that far from driving individuals to tribunals, it is in the interests of both clients and advisers if disputes can be resolved outside of a formal judicial setting.

15) It is worth noting, notwithstanding the lack of legally aided representation at tribunal, that 43 per cent of appeals received across the 36 jurisdictions within the Tribunals Service related to social security and child support, according to the Tribunals Service Annual Report for 2009/2010 [4] , some 339,200 cases in all.

16) Highlighting that, across all of its jurisdictions, the numbers of appeals received in 2009/2010 rose by 26 per cent on the preceding year, the Tribunal Service also says that the increase in appeals was particularly notable in the Social Security and Child Support jurisdiction of the Social Entitlement Chamber, where appeals were 40 per cent up on the preceding year, reflecting both economic conditions and a doubling of the number of appeals against incapacity benefit and employment support allowance decisions.

17) The Senior President of Tribunals, Sir Robert Carnwath, is concerned at the implications of removing civil legal aid without investing in alternatives. In an introduction to his Annual Report [5] , the Senior President says he is:

"very concerned at the implications of removing the majority of civil legal aid, including legal help, without investing in alternatives. For example, Citizens Advice Bureaux play an essential role in explaining welfare benefit decisions, helping appellants decide whether to appeal, and helping them to prepare their case. Without their work, not only will many be left in ignorance of their rights, or without the ability to pursue them, but the load of the tribunals may increase rather than decrease, both because cases will come to the tribunal which could (with proper advice) have been avoided or settled, and because lack of preparation may add to the length of hearings."

Alternative sources of advice

18) The government response notes that "other sources of advice, particularly the voluntary sector, may not be able to meet the demand for welfare benefit services" but goes onto note that "Job Centre Plus and the Benefits Advice Line [sic] will continue to be available to assist applicants" [6] .

19) This statement is misleading, for two reasons. First, the primary basis for an individual challenging a welfare benefit decision will be because Job Centre Plus, or agents acting on their behalf, has made an incorrect decision – if Job Centre Plus could act to help them put this decision right, the individual concerned would not need to seek legal advice in the first place. Second, if either of these two avenues were suitable in helping individuals resolve their problems, there would not have been 135,000 acts of legally aided welfare benefits advice in 2009/10.

Fundamental human rights

20) Welfare benefits disputes are intrinsically concerned with a dispute between an individual citizen and a state agency, whether that is DWP, HMRC or their local authority. All these bodies have access to specialist legal advice, particularly if citizens have to pursue challenges through tribunals. There is therefore a blatant inequality of arms if welfare benefits advice is removed completely from scope. Article 6 HRA says everyone has the right to a fair hearing and simple access to a tribunal does not meet this level of equality.

21) Further, the European Court of Justice has made rulings with regards to some benefits being possessions, under Article 1 of Protocol 1 (Every natural or legal person is entitled to the peaceful enjoyment of his possessions. No one shall be deprived of his possessions except in the public interest and subject to the conditions provided for by law and by the general principles of international law).

July 2011


[1] Jonathon Djanogly, All Party Parliamentary Group on Legal Aid, 22 June 2011

[2] Para . 99, Reform of Legal Aid in England and Wales : the Government Response, June 2011

[3] DWP Press Release, 11 November 2010 – Welfare Reform White Paper: Universal Credit to make work pay - Radical welfare reforms bring an end to complex system

[3]

[4] Tribunals Service Annual Report & Accounts 2009-10, 22 July 2010

[5] Senior President of Tribunals’ Annual Report, February 2011

[6] Para . 105, Reform of Legal Aid in England and Wales : the Government Response, June 2011

Prepared 14th July 2011