One of the most depressing aspects of the evidence received by Lord Bach’s Commission on Access to Justice (which is due to report in September) has been the chorus of complaints about the poor quality of decision-making or other aspects of the decision-making processs, either within government departments (as in immigration cases) or when government has outsourced its responsibilities to contractors  (as with Personal Independence Payments). Thus:

DWP

What difficulties do you, your organisation, your clients or the people you represent face in enforcing their legal rights?

Our clients experience difficulty in understanding their rights which is why they cannot enforce them. We recently saw a client who had received a letter from the housing benefit department purporting to explain her entitlement which was 83 pages long. Even our trained advisers struggled to understand what was being said. We also regularly see clients who have received notification from DWP or their local authority that their benefits have been withdrawn or suspended without any explanation. They find it too difficult to negotiate past the gatekeeping that these departments protect themselves with so they cannot redress the problem as they don’t know what it is.

Our clients also do not have computers and suffer from language or literacy or mental health or other disability difficulties. We struggle to find interpreters who can help those with language difficulties as we cannot afford to pay fees.

Home Office

Apart from having to turn people away because we do not have the capacity to represent them, our biggest frustration stems from failures by representatives of the Home Office to follow precedent or to manage cases effectively. All too often, winning one test case is insufficient: it is necessary to fight again and again for clients with identical material facts. Similarly, in order to get a case stayed so as to await the judgment in a pending lead case it is all too often necessary to make an application to the Administrative Court, rather than being able to agree that no further action should be taken on the case until the lead case was decided.   This approach drives up legal aid and court expenditure, as does a practice of the Home Office to appeal its defeats before the First-tier Tribunal almost as a matter of routine, regardless of merit and despite criticism by the Tribunal.^[1]

The Home Office’s conduct of litigation can also create challenges with which an unrepresented appellant is ill-equipped to deal. Its behaviour as decision maker and litigant has sometimes driven judges to despair:

“The history fills me with such despair at the manner in which the system operates that the preservation of my equanimity probably demands that I should ignore it, but I steel myself to give a summary at least… What, one wonders, do they do with their time? …I ask, rhetorically, is this the way to run a whelk store?”^[2]

I came home from my first ever visit to Wimbledon last night (and the treat of seeing Venus Williams, Andy Murray and Roger Federer one after another, with Pimm’s and strawberries and cream thrown in for good measure) to receive two very different messages with a common theme.

The first was from the Chairman of the Bar, Andrew Langdon QC, inviting me to join a panel discussion in November during National Pro Bono Week on the topic “The Pro Bono Bar and Poor Decision-making.”

He wrote:

The theme of the event is twofold.  On the one hand we want to showcase the pro bono Bar. On the other hand we want to develop a theme that many problems faced by citizens arise from poor decision-making at the outset by those in authority. Some will appear before tribunals unrepresented, but others are unable/unwilling to appeal to/pursue their right to a tribunal hearing.

There is a concern/belief that the trend of poor decisions, linked to impenetrable or oppressive bureaucracy, has increased in recent years. The lack of representation and the lack of funds to pay for it including as a result of withdrawal of LegaI Aid in many areas following LASPO 2012, has exacerbated this problem.

There are four particular spheres which we think may be worth exploring. The first is immigration, the second is tax, the third is special educational needs and disability and the fourth is entitlement Social Security, in particular in relation to Personal Independence Payments (PIPs).

I will be there.

The other message was a heart-breaking message from a woman I will call Emma.  She writes:

I worked with people with difficulties for many years, and now find myself with what I have finally accepted, can only be a disability.

I have found the obstacles former clients of mine faced bring them to their knees with limited resources available to them in the first place.

I now find myself in the same situation and place.

This brutal, deliberately misleading, labyrinthine system that routinely displays malevolence, distrust and relies heavily upon misdirection and apparently breaks the law needs to be challenged.

I am struggling, as many others do.  I feel the injustice acutely, but have neither knowledge, nor energy.

I do wish to be involved in some small way, should that be possible to enable others to live a life.

Existence is all I have at present, and despite the extensive posting I have done recently, like so many others, this will end once my internet connection is ceased, which has to happen in order to save money for urgent plumbing work.

I am in the position of having to choose between communication with the outside, or basic household essential items.

Apparently, for those with disabilities, this is it!

She understandably believes that the time has come for a petition to draw attention to the challenges of the rule of law and to be certain that the law is upheld.   And she wonders if I have any suggestions that could enlighten her as to who might be able and interested in assisting her with embarking on such a quest.

This autumn the Justice Committee of the House of Commons will, I hope, be holding sessions when they will be considering the Government’s long-promised review of the LASPO legislation. It seems to me that this provides a golden opportunity for Clare, and for many, many people in her predicament – and also those who represent them – to flood the Committee with evidence of what is happening on the ground today, when a combination of the withdrawal or emasculation of government and local authority funding for advice services of every kind have left disabled people all too often struggling on their own with

• well-nigh incomprehensible legislation which is forever changing,;
• people involved in public service who do not appear to know – perhaps they have never been taught – that their proper role is to serve (and not to confuse or seek to entrap) the public; and
• a sprinkling of hard-to-find skilled advisers who do their best to correct the flow of bad decisions, often after many, many months of misery in the meantime..

Clare is no longer a JAM (Just About Managing).  She is a FTC (Failing to Cope).  If anyone has any good ideas about the steps she might take to bring her experience before a wider public, I would be happy to pass them on. The CONTACT page on this site gives my email address.  But it had better be quick, before she has to pay hr plumber’ bill…

In a notable speech to the Australian Bar Association eight days ago the President of the UK Supreme Court, Lord Neuberger said (emphasis added):

Access to justice is a practical, not a hypothetical, requirement.  And if it does not exist, society will eventually start to fragment. That is not merely a fragmentation in the sense of the gulf between rich and poor, which leads to real frictions and difficulties if it gets too wide.   It is a fragmentation which arises when people lose faith in the legal system: they then lose faith in the rule of law, and that really does undermine society. The sad truth is that in countries with a long peaceful and democratic history such as the UK (and, I suspect, Australia), we face the serious risk that the rule of law is first taken for granted, is next consequently ignored, and is then lost, and only then does everyone realise how absolutely fundamental it was to society.

It is peculiarly ironic that this is happening at a time when we have never been more concerned to ensure that all citizens enjoy rights. In this country, it is less than seventy years that we signed up to the UN Universal Declaration of Human Rights, less than 65 years since we subscribed to the European Convention on Human Rights, and less than twenty years that we effectively made the Convention part of our domestic law. In Australia, you set up your Human Rights Commission some 30 years ago, Victoria passed its Charter of Human Rights and Responsibilities Act in 2006, and the Australian Capital Territory enacted its the Human Rights Act two years earlier. It verges on the hypocritical for governments to bestow rights on citizens while doing very little to ensure that those rights are enforceable. It has faint echoes of the familiar and depressing sight of repressive totalitarian regimes producing wonderful constitutions and then ignoring them. Quite apart from human rights, the increased complexity of legislation and the substantial growth in regulation makes it harder than ever for non-lawyers to work their way through to establishing what their rights and duties actually are. Thus the growth in complexity and in regulation renders the need for access to legal advice all the greater than it ever was.

Amen to all this.  And I am sure Emma would agree.

Emma’s message to me

Sir Henry Brooke,
I am certain that the time has come for a petition to draw attention to challenge the rules of law and be certain that the law is upheld. I worked with people with difficulties for many years, and now find myself with what I have finally accepted, can only be a disability. I have found the obstacles former clients of mine faced bring them to their knees with limited resources available to them in the first place. I now find myself in the same situation and place. This brutal, deliberately misleading, labyrinthine system that routinely displays malevolence, distrust and relies heavily upon misdirection and apparently breaks the law needs to be challenged. In your blog, I notice your informed and educated insight, and wonder if you have any suggestions that could enlighten me as to who might be able and interested in assisting me with embarking on such a quest?
I am struggling, as many others do. I feel the injustice acutely, but have neither knowledge, nor energy. I do wish to be involved in some small way, should that be possible to enable others to live a life. Existence is all I have at present, and despite the extensive posting I have done recently, like so many others, that will end once my internet connection is ceased, which has to happen in order to save money for urgent plumbing work.
I am in the position of having to choose between communication with the outside, or basic household essential items. Apparently, for those with disabilities, this is it!
I wish to challenge in the strongest possible way, the policies and practices of the government regarding the human rights of the lesser abled.
I feel there are so very many important causes in the world, but I have to choose from all there is. I would be grateful to hear from you, and wish you a pleasant evening.
Emma (not my correct name)

[1] See, for example, VV (grounds of appeal) [2016] UKUT 53 (IAC) (13 November 2015) Nixon (permission to appeal: grounds) [2014] UKUT 368 (IAC), (MR (permission to appeal: Tribunal’s approach) Brazil [2015] UKUT 29 (IAC)

[2] MA (Nigeria) v Secretary of State for the Home Department [2009] EWCA Civ 1229, per Ward LJ at paras 2, 4 and 7.