This is the eighth in the new series of blogs which will start with relevant extracts from the Bach  Commission’s Final Report. These will be followed by  the more detailed treatment I gave to the topic  in one of the chapters in Appendix 5 to the Report

I wrote the papers in this Appendix because I was keen not to lose the opportunity to provide in-depth treatment of important issues for which there would clearly be no room in the report itself.

 

1. EXTRACT FROM THE REPORT

Early legal help

One of the most damaging aspects of the cuts to scope has been the withdrawal of legal aid for early legal help across a number of areas. It is also one of the least cost effective cuts. Whether housing help or advice about a family breakdown, an early understanding of how the law can help resolve problems can help prevent significant distress downstream. It will also save the state money; the pressure on welfare services, for example, from a homeless person far exceed the cost of early help. As Lord Low told the commission, early legal help should be valued for “its preventative value”.[1]

In part one, we proposed a new right to ‘reasonable legal assistance’ not just access to justice in the courts, precisely because early help has suffered so disproportionately. Immediately, we recommend that the government returns to pre-LASPO levels for several areas of early legal help, which we are convinced will in the long term ensure significant savings for the exchequer. This should include all social welfare law (including debt, employment, welfare benefits, immigration and housing), family law, for prisoners in appropriate cases. Early legal help is particularly important in the following areas of law:

….

Welfare benefits

The law on welfare benefits is particularly complicated – Liverpool Law Society, for example, described welfare benefits law to the commission as “increasingly complex”[2] and the government itself has cited welfare benefits as an area of law which has become too complex.[3] This means those who face a problem, for example being assessed as ineligible for jobseeker’s allowance, will frequently require legal help.

In addition, appeals over welfare benefits challenge decisions made by a public authority like the DWP or a local authority. It is a double injustice when people suffer the consequences of a poor decision by a public authority and then have no means to rectify it through access to legal support.

At the same time as legal aid for problems involving benefits has been withdrawn, the need for it has risen: the Law Centres Network told the commission that major social security reforms and an increasingly punitive approach from DWP have led to a sharp rise in inaccurate decisions and benefit sanctions. While law centres and similar agencies have tried to maintain dedicated pro bono projects to meet the need for help, demand is on a scale that cannot – and should not – be met by reliance on unfunded support alone. There is also a real risk that the skills of advisers and practitioners in this complex area will be completely lost.

 

 

2. Appendix 5 to the Report

Chapter 5

Welfare Benefits

Volume of cases

	2009-10	2016-17	Reduction	Expected Reduction
Legal Help & Controlled Legal Representation	136,825	811	-136,014	-135,000
Civil Representation	36	4	-32	0

 

Value of cases (£ million)

	2009-10	2016-17	Reduction	Expected Reduction
Legal Help & Controlled Legal Representation	22,179	226	-21,953	-25
Civil Representation	238	14	-224	0

 

The effect of the removal of legal aid for advice and assistance on welfare benefits

Housing benefit

There is an inherent link between housing benefit problems and homelessness. Problems with a housing benefit claim can lead to rent arrears, a breakdown in landlord-tenant relations, and eviction. Shelter told the Commission that their evidence suggested that this is particularly the case in the private rented sector, where landlords will be even less tolerant of tenants who fall behind with their rent and may look to evict rather than wait for housing benefit to be reinstated. In practice a landlord’s attempts to gain possession of a property through the courts is often frustrated if the only reason for eviction is non-payment of rent due to housing benefit issues, because in those cases a possession order, if made, may well be suspended.

It is therefore a source of enormous frustration to Shelter – and to other practitioners in this field – that they are no longer able to provide legal advice (under legal aid) on most debt and welfare benefit problems and some housing matters, including tenancy deposits, disrepair and social housing allocation decisions – all of which can be precursors of threatened and actual homelessness.^[4]

Even at the point of threatened homelessness, they cannot use legal aid funding to resolve a housing benefit problem, or ensure that the household is getting all the benefits it should, although this would prevent the situation from reoccurring. The experience of Shelter is that the introduction of the “bedroom tax” and other welfare reforms has led to the increased issue of housing possession proceedings, so that housing benefit advice is needed more than ever.

The fact that legal aid is only available in this context in relation to possession proceedings inevitably leads to greater expense to the legal aid budget, to the cost of court proceedings that could have been avoided and, in some instances, to evictions which might have been averted if it had been possible to resolve the benefits issue.

 

Other welfare benefits

The Law Centres Network told the Commission that comprehensive welfare reforms and a punitive approach from DWP had led to a sharp rise in sanctions and numerous questionable decisions about benefits. By definition, those who seek such advice about welfare benefits cannot generally afford to pay for it and, in addition, they are seeking advice on challenges to decisions made by a public authority – the DWP or a local authority – who should be expected to make a legally correct decision. The means of ensuring that public authorities make correct decisions is to make free legal advice available- at an early stage, so that decisions can be challenged and reviewed.

Currently Law Centres and other advisory bodies have to find other resources to provide help to clients in challenging sanctions and in appealing decisions. Some law centres have turned to dedicated pro bono projects to meet this need: their great success reflects the remaining need for help, which is on a scale that it cannot be met – nor should it – by reliance on pro bono advice alone.^[5]

Z2K said that their clients experienced difficulty in understanding their rights. This was why they could not enforce them. They had recently seen a client who had received a letter from a housing benefit department purporting to explain her entitlement which was 83 pages long.^[6] They also regularly saw clients who had received notification from DWP or their local authority that their benefits have been withdrawn or suspended without any explanation being given.^[7]

Alternative funding has been particularly difficult to find for welfare benefits advice, which one agency head described as being like a “dirty word” for funders. This was particularly problematic since the fundamental changes to the welfare benefits regime, including those in the Welfare Reform Act 2012, meant that clients were presenting with more complex cases requiring specialist advice. A report commissioned by the Local Government Association on the impact of the welfare reforms found that although the cuts were broadly the same across all areas of the country, there was a disparate impact in areas of greater deprivation.^[8]   There was no targeting of the post-LASPO transition response towards more deprived areas, so that a large part of the responsibility for transitioning the welfare reform programme and for mitigating its impact on the most vulnerable members of society was being passed to the third sector without adequate funding at a time when there was no sign of a let-up in the programme of reforms, with the continued roll out of universal credit and the cuts to tax credits.

Z2K’s director Joanna Kennedy told the Commission last year that one of the two areas in which LASPO had made most impact was the lack of any publicly funded advice on welfare benefits at a time of huge change in the welfare benefits system. She said:

We now regularly have to turn clients away because we do not have the capacity to advise them and there are almost no other agencies to whom we can refer them. We are contacted, every week, by clients who have received a decision about their welfare benefits which they wish to appeal. For those we can take on and represent there is an 80% success rate. Those whom we cannot take on often then have to represent themselves and the statistics show that unrepresented Appellants have a roughly 20% lower success rather than those who are represented. Many others never know of their rights to appeal or how to do it because there is nowhere for them to turn to find that advice. There has never been publicly funded support for representation but there used to be for advice which helped clients know their rights and prepare submissions.

The growing impact of welfare reform and cuts to legal aid on defending possession cases is described in the following extracts taken from surveys of representatives of Housing Possession Court Duty Schemes (HPCDS) in England:

“[I]t is now very difficult to make referrals from HPCDS to agencies with the specialist expertise to resolve debt and benefit issues in particular, meaning that it is less likely that a long-term solution can be found to the presenting housing problem. Also, as contracted housing advice providers can no longer tackle housing benefit problems the capacity of the sector to provide an effective response to our clients’ multi-faceted legal problems has been significantly reduced. The legal aid scheme is now focused on emergency and complex housing issues. We have almost entirely lost the ability to do ‘preventative’ work by resolving the legal issues that lead to housing crises. This undermines the ability of HPCDSs to act both as a safety net and as a gateway to specialist advice services.” (HPCDSQ Update 3)

“Many housing advice providers can, through legal aid or other funding, help to raise a defence to a possession claim, but they do not have the resources to resolve the underlying problems. Some judges are therefore becoming frustrated by repeat adjournments, by an increase in litigants in person, and by the inability of defendants to access help before they attend court.” (HPCDSQ Update 3)

Part of the gap in provision has been filled by Citizens Advice. Their Swansea – Neath – Port Talbot office told the Commission that advice on welfare benefits constituted their largest single area of advice in 2015-16 related to benefits problems. 4,023 clients consulted them that year, of whom about a quarter had problems relating to Personal Independence Payments (PIPs).^[9]   They did a great deal of work helping clients with form completion, mandatory reconsideration requests (the new procedure introduced post-LASPO) and appeals. Once the mandatory reconsideration process had failed to reverse the decision in the client’s favour, as often happened, they were called upon to advise on the appeals process. They had been able to access some Welsh Government money for casework support through a Frontline Services grant, but there was much more demand than these services could cope with and the grant was not of the same magnitude as the income from legal aid used to be.

The cost of medical evidence in support of a benefits claim

Two academic researchers in Liverpool^[10] told the Commission of the results they obtained from local surveys of the impact of the LASPO cuts they carried out in 2013 and 2015. One of the problems they identified related to the absence of funding to obtain medical evidence to support people’s applications or appeals for welfare benefits.^[11] This compounded the problems they faced when seeking to access specialist advice. Pre-LASPO this advice could be paid for, although this encouraged GPs to charge £50 or £100 for their reports. Post-LASPO GPs were charging less, but many had stopped providing medical reports at all because they had been inundated with requests. As one manager explained:

Tribunals love medical evidence to back decisions up, unless the client’s condition is very obvious. The burden is now on clients to fund this evidence, and many clients do not have the resources. They may not have received any support for weeks or months while on mandatory reconsideration of Employment Support Allowance (ESA).

Z2K was another of the respondents who spoke of this difficulty.

The cost of restoring legal aid in relation to housing benefit issues

The Law Society has calculated that advice could be brought back within scope for an annual cost of about £2 million per annum. This calculation is based on the costs of pre-LASPO advice for Housing Benefits and has not been verified by the MoJ’s statistical modellers. A copy of it is set out in Appendix 2 to their response.

How can the present arrangements be improved?

In the opinion of the Commission there can be no quick-fix solution. The evidence of Joanna Kennedy, who was a partner in a leading commercial firm of solicitors before she became director of Z2K, gives a good indication of the range of the problems a reforming government would need to address. She wrote:

What minimum requirements to legal advice and assistance should the State provide? Should it be a minimum amount? Should it focus on specific problems or areas of law — and, if so, which ones?

There should be legal advice and assistance for welfare benefits and housing issues because without that advice many will face destitution and/or be evicted and face homelessness with all the personal and family trauma and cost to the State that entails.

The State should particularly provide this advice at times when it is making radical changes to people’s rights as it has done in recent years with welfare reform. For example, the Government has realised, belatedly, that the introduction of Universal Credit and some of its characteristics will create serious problems and the need for advice amongst many recipients. It has dealt with this by giving local authorities specific funds to help their constituents understand and manage the changes. Some have passed this money on to local advice services, others are using it to fund internal services which do not of course provide independent advice. This money should have been given to local consortia of advice agencies who could have delivered independent advice to those struggling with the system and this should be the pattern with every introduction of radical changes for two years after the introduction of those changes.

Furthermore, Government should fund training for advice agencies in substantial new regulations when they are introduced.   At present agencies have to fund this themselves and many have wasted thousands of pounds on training on universal credit which is being so substantially changed that more training will be needed, wasting advice agencies’ scarce resources.

Do you have any thoughts on alternative savings/revenue raising schemes that could help provide sources of funding?

There would be substantial savings if the Government were to implement the provisions of the report of the Low Commission. We run a project which collects and pursues examples of poor process by benefits delivery agencies and housing departments in the hope of persuading those organisations to improve their systems so as to reduce the need for advice. For example, as mentioned above, letters are regularly sent to clients suspending their benefits without an explanation, and advisers have to spend many fruitless hours trying to find the source of the problem before it can be resolved. We asked the benefits delivery departments of our local authority why they did not include the reason in their letters, and they said that their computer system does not allow it. If all government departments were charged with improving IT systems then the Department for Communities and Local Government could, no doubt with minimal investment, resolve this system problem which would save many hundreds of hours of advisers’ time.

Some advice services are located within local authority premises. This saves much needed resources being spent on rent and provides access to both records and officers, which means problems can be resolved much more quickly and cheaply.

Many local authorities devolve the delivery of benefits services and council tax collection (which also leads to much demand for advice) to outside agencies like Capita. If they would work with advice agencies on the terms of appointment of these subcontractors (as one or two of the good ones do) their service delivery might operate more flexibly and helpfully. This, again, would reduce demand and in the long run would reduce the cost to the local authority of the subcontracted service.

A concentrated effort to reduce unnecessary demand would be much more effective than looking for funds to increase supply.

How can we best spread public information about legal rights?

For our clients, because of various aspects of disadvantage, the only really effective way of teaching about rights is on the back of having resolved a specific problem for them. Once they see that they do have rights which can mean the system can be challenged successfully then they are potentially receptive to learning more, and also to passing that on within their communities. There is no more effective advocate for the enforcement of rights than someone who has experienced this happening successfully. We have tried offering training to community groups but it is not successful. People only want to know the ins and outs of benefits and housing (which are immensely complicated) when they actually experience a specific problem.

How can we encourage a more integrated approach to solving people’s problems (whether at the state, local or individual level)?

As I have mentioned the State should work with the advice sector on improved processes. At present most departments’ response to complaints about denial of rights is to point to a complaints procedure instead of thinking about getting it right first time.[12]

 

[1] See appendix 1, at p. 20.

[2] See the evidence of the Liverpool Law Society in appendix 2 at p. 83.

[3] Cabinet Office. (2013) When laws become too complex. Accessed September 2017: https://www.gov.uk/government/publications/when-laws-become-too-complex/when-laws-become-too-complex

[4] The point at which Legal Aid may finally become available.

[5] Avon and Bristol Law Centre has done this very successfully. They admit, however, that they are an exception that proves a rule: the service is only available locally, where they are resourced to provide it, whereas it should be equally available across the country and based on right. They attracted publicity when they celebrated the milestone achievement of recovering £1 million for clients through challenging ‘fit for work’ test decisions at tribunals.

[6] Z2K’s trained advisers themselves struggled to understand what was being said.

[7] Their difficulties are compounded by the fact that they find it too difficult to negotiate past the gatekeeping with which these departments protect themselves, so that they are unable to redress the problem because they don’t know what it is.   They also do not have computers, and many of them suffer from language or literacy or mental health or other disability difficulties. The Trust struggles to find interpreters who can help those with language difficulties as it cannot afford to pay fees.

[8] The Centre for Economic and Social Inclusion and the Local Government Association. (2013)   The local impacts of welfare reforms. Accessed September 2017: http://www.learningandwork.org.uk/wp-content/uploads/2017/01/The-local-impacts-of-welfare-reform-version-7.pdf

[9] They said they were seeing what appeared to be a disproportionate number of people whose applications for PIPs were being turned down despite suffering from long term health conditions that were unlikely to improve. Because their clients were being reviewed every two years they were now starting to see people who had initially been granted a PIP having their awards withdrawn on a review despite the fact that their medical problems remained the same or had even deteriorated. Stephen Kinnock MP posed a parliamentary written question in 2016 which elicited the response that the DWP had failed to assess the impact on advice services following the “mass” migration of claims from Disability Living Allowance (DLA) to PIP.

[10] Dr Jennifer Sigafoos and Dr James Organ, lecturers at the School of Law and Social Justice at the University of Liverpool.

[11] This lack of disbursements for medical evidence was felt very keenly in the region due to the high level of disability deprivation in the Liverpool City Region. 46% of the region’s “lower layer super output areas” (LSOAs) are in the most deprived 10% in England in the domain of health and disability deprivation: see the Department for Communities and Local Government, The English Indices of Deprivation 2015: Statistical Release (2015). https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/465791/English_Indices_of_Deprivation_2015_-_Statistical_Release.pdf. Accessed September 2017.

[12] A client applied in 2013 to be assessed for PIP. It took DWP over a year to assess her so we, with others applied for judicial review of the department’s assessment process. It was found to be unlawful but no compensation was awarded because there was no power to do so. “We asked DWP for compensation and when they refused we lodged a complaint in January 2015. It took over a year to exhaust DWP’s two-stage complaints process. In February 2016, as the rules require, we applied for the complaints refusal to be reviewed, since this is now a gatekeeping stage before an application to the Ombudsman. We have been told, in June 2016, it will be another nine months before that review will be completed. That means the complaints process will have taken well over two years before we can even apply to the Ombudsman. This shows that the process is not intended to drive improvement.”