Legal Aid, Sentencing and Punishment of Offenders Bill

Memorandum submitted by The Mary Ward Legal Centre (LA 97)
Introduction

1. The Mary Ward Legal Centre was established more than 100 years ago as the Poor Man’s Lawyer Service, a precursor to the post-war legal aid scheme. The Legal Centre has a long history of helping people who are disadvantaged. It is part of the Mary Ward Settlement, which was established in the late 19th century to provide education and social services for the local community. The Mary Ward Legal Centre is a pan-London independent legal advice centre based in Holborn. It is a registered charity and gives free legal advice to people living or working in London. The service is targeted at people on a low income and specialises in casework and representation in debt, housing, welfare benefits and employment.

2. We deal only with casework at a specialist level. In the last year legal aid enabled the Mary Ward legal Centre’s specialist lawyers and caseworkers to provide free advice and representation in complex cases to over 3,000 Londoners in the areas of debt, employment, housing and welfare benefits. By doing this we reduced homelessness, indebtedness and poverty and increased job retention.

3. If these proposals go ahead the Legal Centre is likely to close.

Summary

4. We fundamentally oppose the proposals in terms of access to justice. In addition, we do not believe the proposals will bring sufficient savings to outweigh the social cost these proposals will create. In fact, research by Citizens Advice shows that legal aid expenditure saves money (Towards a Business Case for Legal Aid, July 2010).

5. There is an implication that legal aid is being spent on general advice. This is not accurate - legal aid funding is only available where there is a legal issue and the case has sufficient merit. Furthermore, access to legal advice includes assessing whether a case has merit and we help stop claims that have no merit from entering the court and tribunal systems and wasting valuable time and resources.

6. Working within the fixed fee scheme requires a great deal of efficiency – there is no room for waste.

7. The proposals remove the potential for early intervention and create a legal aid system based on help only at the point of emergency. This is a false economy. Early resolution saves money. Often, after considering the facts of the case, we are able to achieve a positive resolution without resorting to costly hearings at court and tribunal, saving time and money for the court and tribunals service and also on wider societal costs associated with poverty and social exclusion. Furthermore, leaving clients with no access to help prepare their case will lead to longer hearings – we had an example of someone who had conducted their own employment case without help and the hearing was listed for 15 days as compared to an estimated 5 days had they had help.

8. The proposals will impact the most on vulnerable people. Our clients are on a very low income. Many have poor literacy and numeracy. Over 60% have a disability, many a mental health issue. Many speak little or no English. In other words, the majority are vulnerable.

9. Alternative approaches to resolving legal issues, such as ADR or mediation are not suited to social welfare law, especially where the case is against the state. In any case, these methods also cost money. ADR and mediation have been encouraged as a way of avoiding costly court action. A great deal of our legal aid work is about intervening early to do just that - avoid costly tribunal and court proceedings.

10. We provide specialist legal advice and representation in the areas of employment, welfare benefits, housing and debt to people on a low income living in London. It has long been accepted that clients often present with a cluster of problems - for instance, clients with a welfare benefit problem are likely to also have a housing and debt problem. This led to the Legal Services Commission requiring providers, from November 2010, to offer legal advice in all three areas of housing, debt and welfare benefits. The proposals set out in the Bill completely undermine this holistic approach and will, inevitably, lead to a huge reduction in the supplier base of social welfare law. The loss of expertise will be on a grand scale and will be extremely hard to regain. Ultimately, society will pay the price for this loss.

We have focussed our submission on the areas in which we specialise: debt, housing, employment and welfare benefits law. In particular, the proposals to exclude certain areas from the scope of legal aid funding

Employment

11. The Bill proposes to take all of employment out of scope, except for discrimination. Whilst we welcome the fact that discrimination in employment will be retained we strongly oppose the removal of all other employment issues. This will mean that people without the means to pay for a solicitor would no longer be able to get help with enforcing the following employment rights: unfair dismissal, wages, health and safety, whistle-blowing, National Minimum Wage, Protection from Harassment Act, part-time working, fixed term contracts, redundancy, parental and maternity leave, Sunday working, Working Time, public duties and general contractual claims arising out of employment through the common law.

12. Furthermore, most discrimination claims are brought together with other claims, for example unfair or wrongful dismissal, unpaid holiday pay etc. The Tribunals Service "Employment Tribunal and EAT Statistics (GB)1 April 2008 to 31 March 2009" confirm that the average number of jurisdictions per claim form received is 1.8, i.e. more than one claim per form is the norm. Will Legal Help be available for these mixed cases? If not, how is this supposed to work? The other claims are likely to be so inextricably linked with the discrimination claims that it would place claimants and advisers in an impossible situation – without the funding advisers would not be able to advise on the non-discrimination claim(s) and the claimant – without the means to pay for the advice – would face having to drop these other claim(s) or lodge them without legal advice on a separate claim form to the discrimination claims. This would be totally impractical and likely to result in confusion for clients and Tribunals and lead to more Tribunal time and resources. In the normal course of events, the Tribunal would naturally seek to save time and resources by consolidating claims arising out of the same employment relationship and between the same parties.

13. There is the public importance of whistle-blowing and health and safety claims. An employee who is dismissed or subjected to a detriment for bringing criminal conduct to the attention of a third party would no longer have the protection of the right to obtain legal advice on employment through the legal help scheme or legal aid. This is likely to discourage whistleblowers from coming forward. An employee who reports an employer to a third party for breaking health and safety law would no longer be able to access free legal advice. This could have disastrous consequences from a public policy point of view. Employees currently have the right at present if subjected to extreme harassment to use the Protection of Harassment Act. This right will be removed.

14. The Government has defended these proposals by claiming that clients can present cases themselves and that matters are not complex. This misrepresents the reality of employment law and tribunals. Butterworth’s Employment Law Handbook contains over 80 Acts, nearly 150 statutory instruments, over 30 main European directives and around 25 statutory codes of practice dealing with employment law. The practice and procedure of the Employment Tribunal and Employment Appeal Tribunal is exceptionally complex for a lay person. Issues often also involve European law. Employment Tribunals are now effectively courts in all but name. This has been recognised by government by the changing of the name of Tribunal chairs to Employment Judges, by providing cost awarding powers, by introducing the over-ridding objective into employment law and by having very similar interlocutory processes and hearings to a Court. There is a serious issue of equality of arms with most employers having legal representation and employees not. Employers are often represented by Counsel, sometimes by a QC - why would this be the case if matters are so straightforward?

15. The proposal is to remove Employment entirely from scope – this means there will be no legal aid for appeals to go to the Employment Appeal Tribunal, Court of Appeal and Supreme Court or Europe. These appeals are solely on points of law. How is a lay person supposed to find errors of law, formulate grounds of appeal on law and represent themselves against Counsel in these Tribunals? This is an infringement of their Article 6 rights.

16. Tribunals are specifically prohibited from finding legal arguments that clients have not considered or helping them to bring up claims, which they may have but be ignorant from a lack of knowledge of the law. Lack of advice means that clients are likely to leave out claims they could have made from their applications.

17. In its response to the consultation the Government states it does not consider that applicants in these cases are likely to be particularly vulnerable. This is not our experience. The majority of our clients are vulnerable. Many of our clients do not speak English and many have a disability, often a mental health issue.

18. The Government claims that damages based agreements can deal with employment claims. The value of most employment claims means that such claims are not viable for no win no fee agreements. Furthermore, we have experience of problems with unscrupulous and inexperienced consultants messing up claims.

19. The Government’s own Equality Impact Assessment states that the removal of non discrimination employment claims from scope is likely to have an adverse indirectly discriminatory effect on Black and Minority Ethnic clients. They attempt to justify this on the grounds of a proportionate means of achieving a legitimate aim but this seems to be based in reality only on cost, although it is claimed that reform is involved. European case law states that indirect discrimination cannot be justified on cost alone. We would contend the removal of non-discrimination employment claims from scope is neither proportionate nor legitimate and breaches discrimination law and human rights law.

Welfare benefits

20. The Government states that these issues are of lower objective importance because they are essentially about financial entitlement. The welfare state is a pillar of a civilised society. It exists to provide financial protection at key times in people’s lives: ill health, disability, caring for children and adults, unemployment, retirement etc. It is a fundamental right. As with other areas of law, these rights mean nothing without access to help to enforce them.

21. The Government states that whilst it recognises that the class of individuals bringing these cases is more likely to report being ill or disabled than with the legal aid client base as a whole the accessible nature of Tribunals mean clients can generally present their case without assistance. This misrepresents the reality of social security law and of Tribunal appeals. It also dismisses, without adequate justification, the disproportionate impact on the vulnerable in our society. The majority of the clients bringing these cases are vulnerable. The Government accepts this. Its own impact assessment shows that there is a potential significant disproportionate impact on ill or disabled people, female clients and BAME clients. In our view, the reasons given to disregard this disproportionate impact are not justified. This area of law is complex even for those with years of experience advising on welfare benefits. Many of our clients have mental health issues, problems with literacy or speak no English. These clients will have no way of bringing a case without funding for specialist advice.

22. In its response to the consultation the Government states it accepts that there are some complex cases brought before the tribunal concerning the interaction between, for example, entitlement to benefits and nationality issues and that it does not consider that most cases before the tribunal are this complex. This is a misrepresentation. Social security law is one of the most complex areas of law – often put on a par with tax law in terms of its complexity. For example, one regulation alone with regard to when a superseded decision takes effect runs to ten pages in the Sweet and Maxwell Social Security Legislation volumes – to 12 pages with the analysis. At present claimants can get Legal Help funding for preparing the appeal – no funding is available for representing the claimant at the Tribunal hearing. Due to the complexity of this area of law legal help funding is essential for claimants to be given a fair chance to challenge decisions; many of which are about securing a basic level of subsistence. Statistically claimants are more likely to have an appeal upheld where they have a representative. Tribunal Judges are more likely to reach the right decision where the claimant has a representative. Claimants will not know the Tribunal procedural rules – when and how they can request a postponement or an adjournment or that they can withdraw their appeal if they decide to do so

23. The proposals also mean that there will be no legal help for appeals to the Upper Tribunal – these are solely on points of law. In our experience claimants will not stand a chance at appealing on a point of law without legal advice. This will place claimants at a huge disadvantage - the Department for Work and Pensions will have access to representation, often Counsel, and the claimant will be left unrepresented.

24. Furthermore, clients will no longer have access to obtain reports (currently claimable as disbursements) that are often essential to help argue their case, e.g. - a medical report to support an appeal against withdrawal of a disability benefit – these cost on average £80, rising to £250 for consultant reports.

25. The proposals suggest that Tribunals are user-friendly and inquisitorial in nature. However, Tribunal judges are increasingly adjourning proceedings with directions that specialist advice be sought about the appeal before it can be heard.

26. The Government states that whilst it acknowledges that respondents have said that other sources of advice, particularly the voluntary sector, may not be able to meet the demand for welfare benefit services because of factors such as local authority cuts, it remains the case that Job Centre Plus and the Benefits Advice line will continue to be available to assist applicants. Firstly, Jobcentre Plus cannot help a claimant appeal against its own decision (claimants need access to independent advice). The Benefits Enquiry Line is just that – an enquiry line – it is not able to provide specialist help, such as challenging decisions. Local Citizens Advice Bureaux generally do not take on cases at a specialist level - they refer claimants to organisations like ours, as do other voluntary organisations. Claimants will have nowhere else to go if funding is removed from the Legal Help scheme.

27. There is a large amount of poor departmental decision making in this area of law – borne out by the high rate of appeals that are found in the favour of the claimant. A large amount of our work is helping people with appeals against refusals to pay sickness and disability benefits. Over 90% of these cases are decided in the claimant’s favour. It is unjust to take away the means for claimants to challenge these decisions when so many of them have been made in error.

28. These proposals are coming at a time when there will be more demand for welfare benefits advice. The Government is proposing a huge overhaul of the benefits system through the introduction of the Universal Credit, changes to Housing Benefit and significant changes to Disability Benefits. Previous welfare reform has resulted in increased demand for advice. When the Employment and Support Allowance was introduced the Government predicted that there would be a considerable increase in appeals in respect of the work capability assessment. This has been borne out in reality – there has been a 56% increase in the number of ESA/IB appeals received at the Tribunals Service between quarter two of 2009/10 and 2010/11 (Quarterly Statistics for the Tribunals Service, 2nd quarter 2010/11). These are small changes compared to the scale proposed in the plans for a new Universal Credit.

29. The proposals suggest that Welfare Benefits is an area of law that is of lower objective importance. However, we would argue that securing welfare benefit entitlement is of vital importance and is inextricably linked to other areas of law that are to remain in scope. If a client has access to their correct welfare benefit entitlement at the time that they most need it, this is much more likely to prevent serious consequences like increased debts, homelessness, ill health and crime. The Government states it has considered the concerns raised about the risk that the loss of benefits could later lead to homelessness and implies that its intention to retain legal aid for debt cases where the home is at immediate risk due to rent or mortgage arrears should suffice. This misses the point being made. Without access to help with preparing the appeal claimants may not be able to obtain their entitlements, leading to a reduction in income and in turn an inability to pay the rent. Claimants may be faced with no way of challenging the benefit decision further, either because they have not appealed in time (we often see clients who have missed the deadline) or because they have lost their appeal and have no idea how to appeal on a point of law. With a reduced income they will find it impossible to show a Court they can pay the rent plus something towards the arrears so will inevitably be evicted.

Debt

30. We strongly oppose the proposal to take all of debt out of scope except for cases where there is imminent risk of the loss of home. This is a false economy. A vast amount of our debt work focuses on early intervention to avoid emergency action and the costs associated with going to court. All of this would be lost. We submit that the Government has failed to properly deal with this very important point. It says it notes the points made about early advice but that it needs to make substantial financial savings within the spending review period. This is shortsighted as the costs will come further down the line and will be higher than they needed to be.

31. The Government states that many of these cases are about practical rather than legal problems. This is a misrepresentation. It implies that legal aid is available for practical advice when in fact legal aid is only payable where there is a legal issue. It also ignores the fact that debt law is highly complex, requiring specialist knowledge – often leading to the need to seek Counsel opinion.

32. We are pleased that the Government has conceded to allow legal aid in relation to a statutory demand or bankruptcy proceedings against an individual whose estate includes their home. However, in not allowing it in cases of voluntary bankruptcy it is closing off a remedy for clients who have no means of paying off their debts or obtaining advice prior to the debtor petitioning for their bankruptcy and inadvertently using an unsuitable option for dealing with their debts. Legal aid will not be retained to contest an application for a charging order, leaving clients no access to advice to challenge such an order. The Government seems satisfied with this since it will be available at the order for sale stage. But for many cases this will be too late – the moment to challenge the debt would have been lost and clients may have little defence to stop the possession, resulting in homelessness. People who dispute debts without specialist advice can find themselves subject to a county court judgement, charging order and order for sale due to not being able to obtain specialist advice at an early stage. Early intervention can mean that a case never has to reach the courts thereby making huge savings to the public purse.

33. We were pleased that in its response to the consultation the Government recognised that many respondents told them that alternative sources of advice will no longer be available in the future and now refers only to the extension of the face-to-face (previously FIF) funding for debt advice. This funding is until 31 March 2012. We are hopeful that this will be extended further but there is, as yet, no guarantee it will be. In any case, this will not plug the gap left by legal aid funding and the Money Advice Trust is predicting a growth in the need for debt.

Housing

34. The proposals mean that, in many important areas tenants without the means to pay for a solicitor will be excluded from accessing legal help to enforce their rights. Clients will no longer have access to free legal advice on the following actions:

· to enforce a Right to Buy;

· to enforce a right to buy a freehold or extend the lease;

· to set aside a legal charge (for example, mortgage) or the transfer of a property;

· for damages and/or an injunction for unauthorised change of use of premises;

· under the Housing Grants, Construction and Regeneration Act 1996;

· for re-housing (apart from where there would be a contravention of the Equality Act and Judicial Reviews - so we would be able to deal with potential JR cases on transfers but it may be practically impossible to take on any transfer cases because such cases may not be immediately recognisable as being JR cases and it can take some work before it might become a JR case);

· wrongful breach of quiet enjoyment (although actual unlawful eviction is now covered). Breach of quite enjoyment can be very severe leading to a situation where a tenant is being harassed in their own home and often they are then unlawfully evicted by the landlord or the tenant is unable to return to the premises. We could not seek remedy against landlords to prevent them from such harassment at a stage before it becomes an unlawful eviction case.

· housing disrepair proceedings where the primary remedy sought is damages, including damages for personal injury. Often tenants have been living in terrible conditions for long periods of time but may at the last minute commence works so that a tenant is unable to apply for an injunction. We would no longer be able to apply for compensation only on behalf of such tenants. Landlords may well take a view that it is worth taking the risk of not undertaking repair works unless they are under threat of injunctive proceedings and then commence works before the issue of proceedings to prevent tenants from obtaining any redress against them;

· applications for a new tenancy under the Landlord and Tenant Act 1954

35. Many rent arrears cases involve housing benefit issues. After looking into the housing benefit issues, quite often the rent arrears are reduced in part or entirely by housing benefit backdating. The Government has made it clear that no legal aid will be available for resolving the benefits aspect of this case, giving the justification that it there is a user-accessible tribunal to resolve welfare benefits problems and it does not believe that legal aid is justified for such matters. This shows a total misunderstanding of the process involved in such cases. A housing caseworker faced with a client with rent arrears will logically need to explore the cause(s) of the arrears and this needs to include looking into housing benefit entitlement. Without the funding advisers would not be able to advise on this crucial aspect of the case and the client’s case could not progress, leaving the client without help. The Government suggests that clients pursue (by themselves) the welfare benefits issue by appealing and once this is dealt with the housing issue should be resolved or if the appeal is unsuccessful and the client subsequently faces action for rent arrears legal aid will become available to deal with the housing dispute (not the benefits issue). This assumes that when clients seek help due to rent arrears that they also present with a housing benefit decision against which they can appeal. This is not the case – the benefits issue invariably arises out of the exploration of the cause of the rent arrears and often this comes up at the stage of eviction and needs to be dealt with urgently. These proposals place legal aid advisers in an impossible position. They will not be able to continue with the case due to lack of funding and clients would face being made homeless – the very thing that the Government says is a priority to fund.

September 2011


Annex

Case studies

The following cases would not be covered under the current proposals.

1. Mr F a carpenter in his 70’s was dismissed. He went to a CAB and his claim was filed prematurely and claims missed out. We assisted him to bring a second claim to the Tribunal within the limitation period. There was a further res judicata hearing where we represented him against Counsel and part of the new claim was allowed through but part not. This is now on appeal to the Employment Appeal Tribunal and involves complex legal issues involving res judicata. It would be wholly impossible for the client to deal with these legal arguments on his own without public funding.

2. Ms G a cleaner speaks virtually no English and has 2 young children. She had a small claim for unpaid wages and unfair dismissal. It would be virtually impossible for her to bring a claim on her own given her language problems and lack of understanding of procedures. We assisted her to bring a claim to the Tribunal, which resulted in an agreed settlement and payment of compensation. The sums involved were small but of considerable importance to the client given her very low earnings.

3. Ms W a doctor of Chinese medicine worked in the UK for Chinese employers for 7 years. She does not speak English and had been isolated and sick with TB. She was dismissed without a fair procedure and not paid sums she was owed. We represented her pro bono in a 4-day hearing with Counsel appearing for the employer. We won the case for her at hearing and she was awarded £39,778.05. The case went on appeal to the Employment Appeal Tribunal where we obtained pro bono assistance for her and instructed a barrister. We also won the EAT appeal for her. This client would not have been able to bring a case without our assistance given her lack of English and without assistance from public funding.

4. Mr M had mental health problems and submitted his claim for unfair dismissal out of time. We assisted him to obtain medical evidence to persuade the Tribunal to allow the claim out of time and the case was settled before hearing. He would not have been able to present his case without legal assistance.

5. We are dealing with a discrimination and general employment claim where a consultant filed a claim several months outside a deadline preventing a client proceeding with important aspects of her claim. The same adviser charged the client a cancellation fee of over £3,000 for cancelling a no win no fee agreement after claiming only £30 worth of work on that aspect of the claim. This has resulted in a complaint to the Ministry of Justice and an investigation by Trading Standards. The consultant had employed debt solicitors to threaten the client with proceedings for non-payment of costs. We resisted their letter before action and got them to drop the threat.

6. Ms P is 21 years old and has been diagnosed with Borderline Personality Disorder. She had a traumatic childhood and was sexually abused by a close family member as a teenager. Due to the nature of her mental health condition, she has difficulty regulating her emotions and behaviour and as a result presents as being aggressive. She has difficulty communicating with others especially with official bodies such as DWP and the Council and has a low level of literacy.

7. She made a claim for Employment and Support Allowance (ESA), attended a medical assessment and was found to be fit for work. She was advised by Jobcentre plus that she could appeal against this decision but was told that the appeal was unlikely to succeed and that she should claim Jobseeker’s Allowance instead. She was not given any advice regarding the procedure related to the appeal and consequently she lost the appeal.

8. We are now assisting her to have the appeal heard again by another Tribunal as she was not sent the papers relating to her appeal beforehand and was not given the opportunity to attend in person. Had she received advice about her appeal, she would have known the criteria that is used in making these types of decisions, have been given assistance in gathering medical evidence and presenting her case to the appeal Tribunal with reference to the regulations that apply to ESA. She would also have been advised that she could continue to be paid ESA until her appeal was heard by a Tribunal and that she is likely to meet the qualifying conditions for Disability Living Allowance as well.

9. Mr T suffers with post-traumatic stress disorder, anxiety and depression as a result of horrific events that he witnessed when he was in the army in Lebanon. His English is very limited and as a result struggles to deal with correspondence and with government departments including DWP. He claims Income Support, as he is currently too ill to work due to the debilitating effect of his mental health conditions. He attended a DWP medical assessment and was found to be fit for work. As a result his Income Support stopped, his Housing Benefit was also suspended and he started to accrue rent arrears. He had no income to pay for food, electric or water and does not have a family in the UK that can support him. We successfully assisted him in appealing against the decision that he was fit for work by gathering medical evidence and preparing a written submission for the appeal Tribunal. His benefit has now been re-instated, his Housing Benefit is in payment again and we have also increased his income by securing his entitlement to Disability Living Allowance.

10. Mr K is deaf. He cannot use the phone and he relies on lip-reading and hearing aids to communicate. He is a leaseholder, living in a block of flats maintained by a management company. He is no longer able to work, and gets Income Support because he is accepted as being medically unfit for work. His Income Support covers his service charges, and certain repair bills. In 2006 he went to his local CAB because Jobcentre Plus had declined to cover the cost of the most recent repair bill of £3700 (his pro-rata share of block repairs), when they had accepted all previous similar bills. The CAB contacted Jobcentre Plus, but after 2 years were unable to resolve the matter, and referred Mr K to our Legal Centre.

11. We had similar difficulties dealing with Jobcentre Plus, having to send the same documents at least twice, with one official agreeing that the repair bill should be covered, and then the next refusing to pay the bill. An appeal was lodged, which we attended with Mr K, since the outcome of the appeal depended on complex legal argument and case law involving the definition of major and minor repairs. This, it turned out, was particularly important, as Mr K was unable to lip-read the Tribunal Judge or the DWP’s Presenting Officer, and relied on his caseworker to relay their comments.

12. The appeal was successful, but there was a long delay before the housing costs were correctly paid. The matter was only resolved when a Letter Before Action was issued, threatening Judicial Review. Jobcentre Plus then also paid compensation of £880 plus an ex-gratia payment of £800 to cover the legal fees incurred by Mr K, because of the late payment of the housing costs.

13. Example of erroneous advice from Jobcentre Plus

14. Mr M is a victim of torture, suffering from Post Traumatic Stress Disorder, with depression and anxiety. The Mary Ward Legal Centre was helping him with his appeal against the decision that he was not entitled to Employment and Support Allowance, because he was fit to work, and as part of this advice had ensured that his claim for JSA was withdrawn and that he was paid ESA pending the outcome of the appeal. Some time later, before the appeal had been heard, it came to light during an appointment to prepare for the appeal that Mr M had made another new claim for JSA. He had called Jobcentre Plus to chase payment of his ESA, and was told that he would not be paid any more ESA after the next giro was issued, and instead would have to claim JSA, despite the fact that he had a medical certificate that was valid for a further 2 months, and his appeal had yet to be decided. Due to his mental health problems and past experiences, Mr M is by nature compliant, and accepted the instructions given to him, making a claim for JSA. Although the amount of money he received would be the same, he now faced the burden of satisfying the jobseeking requirements. Further, at the time that Mr M claimed JSA, Jobcentre Plus had issued new guidance, which would have prevented reinstatement of ESA following a new claim for JSA, if his ESA appeal succeeded. (Mary Ward Legal Centre was already, along with other specialist organisations, challenging this guidance).

15. We contacted Jobcentre Plus and they confidently stated that the ESA appeal had lapsed now that Mr M had claimed JSA, but conceded that this was not the case once we had challenged their statement and they had checked their records. They then stated that the appeal would not succeed because Mr M was now claiming JSA, and refused to accept our assertion that the appeal decision would be based on Mr M’s capability for work at the time of the decision to refuse ESA, not on his current condition or his current benefit claim. We wrote a letter of complaint to Jobcentre Plus. They replied with uncharacteristic speed, within a week, to confirm that the JSA claim had been cancelled, and the ESA claim reinstated.

16. Mr M’s ESA appeal, heard 3 months later, was successful. In the meantime the JCP guidance on reinstatement of ESA when JSA had been claimed pending an ESA appeal has been revised to avoid the problems Mr M and other claimants would otherwise have faced. Due to his mental health problems and his limited English, Mr M was not capable of challenging the ‘advice’ of JCP. In fact, he would not even have realised that their instructions were wrong. Without the intervention of a specialist adviser, with up-to-date knowledge of JCP guidance, as well as a detailed understanding of the law relating to appeals the matter would not have been resolved.

17. Ms B had been refused a backdated award of housing and council tax benefit. We helped her successfully appeal to a first-tier tribunal, on the basis that she did have ‘continuing good cause’ for not claiming sooner, as her tax credits award had been so confusing at the time in question that she did not know what her weekly income was. The tribunal accepted our submissions and evidence, and directed that a backdated award should be calculated and made for the six-month period in question. The local authority then decided that she was not entitled to housing and council tax benefit for the final five months of this period, as it was believed that her income was too high. This was because they treated an arrears payment of tax credits paid to her one month into the six-month period as income. If this was correct, it would have meant that her income was too high to qualify. We submitted that this was wrong in law - they should be treated as capital rather than income when assessing entitlement to housing and council tax benefit.

18. The local authority then refused to make a decision to treat the payment as capital until it had specific confirmation from the Tax Credit Office that the payment in question was in fact an arrears payment. We obtained this evidence, but they further delayed making a decision because they quibbled about the wording of the letter we had obtained from the Tax Credit Office, and said they wanted to liaise directly with The Tax Credit Office about this. As several months had passed since the first tier tribunal decision, and Ms B Had substantial rent arrears that were the subject of possession proceedings, we wrote to the local authority on Ms B’s behalf threatening to issue judicial review proceedings unless they revised their decision and accepted that it was an arrears payment. They then conceded, accepted that the payment should be treated as capital, and made a further backdated award that helped significantly reduce Ms B’s rent arrears.

19. Mr S owned his home jointly with his wife.  They divorced and under the divorce settlement the client signed forms transferring the property and the mortgage to his wife in 1995.  The property was repossessed in 1996.  The client bought a new property.  Around 2002 the bank contacted the client and informed him that his name had not been taken off the mortgage because the account was in arrears. The client was contacted by debt collectors in 2005 and on advice from a CAB he started making token repayments for a short time.  It would appear that he was wrongly advised, as the limitation period may not have quite expired.

20. Earlier this year the bank issued a claim for £122,000 in respect of an alleged mortgage shortfall.  The particulars of claim state that at the time the property was sold in 1996 the shortfall was £57,000.  When the client first came to us he was working so was not eligible for legal help; we drafted the defence based on the Limitation Act 1980 and then referred him to private solicitors; he was advised by them for a few months but he could no longer afford to pay them; in addition the claimant asked the client to pay £300 for the documents he wanted see before disclosure had been ordered (including the statement of account to show whether the limitation period had expired) and he could not afford to pay this. The claimant issued an application for summary judgement.

21. He is now too ill to work. He gets employment and support allowance and eligible for legal help, so we have been able to advise him. The case was listed for hearing.  We obtained a barrister’s opinion that his case had merits. With the help of legal aid we managed to get the case settled for £10,000. This started out as a large claim; if judgement had been entered the claimant may have enforced with a charging order and application for order for sale of his home or they may have enforced with a bankruptcy petition. In which case he may have lost his home. Whilst the proposal is to retain legal aid for defending an order for sale or bankruptcy where the client is a home owner current legal aid funding arrangements enabled us to negotiate a settlement and avoid the time and expense of further court proceedings and avoid the threat of homelessness and the need to with the matter at the most urgent stage. Moreover, making legal aid only available at the order for sale or bankruptcy stage – and not at the charging order stage – will be too late in many cases as the moment to challenge the debt would have been lost and clients may have little defence to stop the possession, resulting in homelessness

22. Ms G is a pensioner in receipt of pension credit. She met someone who subjected her to violence and made her a prisoner in her own home. She was so intimidated by him that she did not try to seek help from anyone. He made her take extra medication rendering her unable to realise what was happening to her. In the end the police were involved and eventually he was made to leave. He only did so after setting fire to her home thus destroying all evidence of a large amount of credit agreements he had either signed himself forging her signature, or had made her sign under threat. She had a judgment entered against her for £4,000, by a high street bank. We explained the fraud issue to the bank and they agreed to set aside the judgment. Then another company specialising in purchasing debts, also issued a claim for £6,000. This company could not be persuaded about our client’s situation and continued with the court action. A legal aid certificate was obtained that enabled our client to receive help from Counsel specialising in credit debts. The defence that Counsel drafted was sufficient to make the company agree to a Consent Order in which the company agreed not to pursue or sell the claim. If legal aid had not been obtained our client would have had a judgment against her followed by a charging order as she is a home-owner.

23. Ms A had a possession order made recently on the basis of rent arrears accrued over the last 6 months, because her ESA and HB stopped and there is some muddle about why they have stopped. She has a brain injury and finds it difficult to deal with forms etc. and she has no other support. We can apply to set aside the possession order or to suspend the warrant, but clearly the issue is the arrears. She needs help with looking into what has happened with her HB. It may be necessary to get the HB file to check if any applications were in fact made as the HB claim history seems unclear. From the initial look at the case it seems possible that a fresh application and a request for backdating may be necessary, in such cases we would seek to obtain medical evidence in support of such a request. None of this is a tribunal appeal and although it is reasonably straightforward for us to deal with, it is not for her. If these plans go ahead we could make the application to the court, but would have to tell her that she needs to sort out her HB issue by herself as we would not be funded for this aspect of her case. She is then highly likely to be evicted. Whereas with access to our advice we can almost certainly get the arrears paid off and she can keep her home.

Prepared 11th October 2011