Birmingham Law Centre Blog

Birmingham Law Centre often meets families in desperate situations.

A recent case related to a young woman who had fled domestic violence, with her two year old son and was being accommodated in a women’s refuge run by Birmingham and Solihull Women’s Aid.

She had successfully been granted status to claim benefits in the UK six months prior to her appointment with us but was still without any benefits despite making the appropriate claims. She was surviving on food parcels and clothing donations as well as the good will of the women’s refuge.

The Law Centre helped her to pursue challenges to the DWP, Tax Credit Office and Child Benefit Office. In particular we were able to make interim payment requests on the basis of hardship. When the Child Benefit Office failed to act on these requests, a threat to take action for judicial review ultimately resulted in Child Benefit being awarded, which was key to awards of Child Tax Credit and Income Support.

We were able to take this action because of the funding available from the Legal Services Commission. From April 2012 this funding is being cut and we are extremely concerned that many families and individuals will be without the help necessary to resolve situations such as these in the future .

By Megan Ward

Birmingham Law Centre successfully threatens G4S with Judicial Review of their continued and unreasonable delay in providing accommodation to a disabled asylum seeker.

In May this year, G4S were given the contract to provide accommodation under ss 4 and 95 of the Immigration and Asylum Act 1999 to destitute asylum seekers in the Midlands.  There have apparently been a number of difficulties in G4S reaching agreement with existing accommodation providers which has led to a lengthy delay in finding suitable or adequate accommodation for asylum seekers to move to from the Initial Accommodation they are provided with when they first apply for asylum.

This was they case for our client who had been living in the Initial Accommodation for three months before making contact with us.  Our client suffers with post traumatic stress disorder and has had his right leg amputated below the knee.  Difficulties with coping with his prosthesis had led to him falling in the bathroom on five separate occasions and his fragile mental state was being exacerbated by the living conditions that he had been exposed to in the shared hostel-type accommodation of the Initial Accommodation.

We sent a letter to G4S in accordance with the Judicial Review pre-action protocol on the basis that the Initial Accommodation was simply unsuitable for a man with our client’s disability and health problems and that the continued delay in providing adequate accommodation to him was unreasonable on public law grounds.  Happily, G4S agreed and found suitable alternative accommodation for our client within days.  In fact, our client has moved in to accommodation that has been freshly renovated to accommodate the kinds of aids and adaptations necessary to cope with his care needs.

Whilst we are pleased that there was a successful outcome for our client in this case, we are also aware that many other people continue to be poorly served by the increasing number of private providers of public services such as accommodation for asylum seekers.

Our argument is that many private providers of public services avoid scrutiny of the way in which they are providing these services precisely because they are the private sector and claim not to be subject to public law principles.  We believe that this case shows G4S, as a private company that is performing a public role, should be subject to public law principles and judicial review.

Public scrutiny of the way in which services are provided is essential in a democratic society.  This creeping privatisation disempowers all of us by excluding us from the courts as a means of challenge or redress when services are performed badly, unlawful decisions are made or administration is poor.

G4S did not say that this is a contractual matter between them and UKBA.  Neither did they offer any challenge to our argument that they are providing a public service and should be subject to judicial review.  If they had taken a different view on this matter, they would have said so but they didn’t.

Hopefully this case can provide encouragement to advisers and confirm to them that private firms such as G4S can be challenged by way of judicial review for any failure to provide the public services for which they have been contracted.

By Michael Bates

We have now been granted permission by the Court of Appeal to apply for Judicial Review of the decision to suspend payments of Income Support pending the substantive appeal in the Upper Tribunal.  Lord Justice Maurice Kay considers the grounds to be arguable.

Details of the original Permission Hearing in April this year can be found here .  We will continue to update the blog as and when we hear anything further.

The Claimant is represented by Desmond Rutledge of Garden Court Chambers.

Birmingham Law Centre seeks Judicial Review on behalf of Birmingham Man Nigel Simons over the compatibility of the UK Census with Human Rights and European Union law

On 21-22 June 2012 Mr Justice Beatson (sitting in the Birmingham Administrative Court) will hear a Judicial Review which concerns the security and confidentiality of personal and private data contained within the 2011 census.

The case is a test case and one of fundamental importance nationally. If successful, it means that the confidentiality assurances given by the Government and the Statistics Board in the lead up to the 2011 census were materially flawed.  It will also mean that until the UK Government provides cast iron legislative guarantees on data confidentiality, the US intelligence agencies can continue to access, retain and analyse personal data of each completing householder in the UK.

It further means that those prosecuted for not having completed the 2011 census on grounds of privacy concerns may well be entitled to have their convictions quashed.

The case also confronts the real concern that US companies present in the UK and operating in the public and private sectors may be compelled under US law to provide information under their control or to which they have access to the US intelligence agencies and further be bound by gagging order never to tell.

Nigel Simons, a Birmingham man and longstanding privacy campaigner, refused to take part in the 2011 Census. He has completed the census in the past but believes that the 2011 census was different because the multi billion US defence contractor which specialises in surveillance, intelligence and data gathering for the US government, FBI, CIA, Homeland Security, NSA etc Lockheed Martin, was awarded the contact to collect and process the census data. Mr Simons believes that as a result there is a serious risk of personal information contained in the census being disclosed to the US intelligence agencies.  This is because Lockheed Martin has statutory obligations under the USA Patriot Act 2001 which permits the US government to force US companies to hand over data in their control or to which they have access on the very low threshold that there is a potential risk to US national security.  This is a very intrusive and far reaching power.

On 21-22 June 2012 Mr Simons’ evidence and concerns will be referred to at length during the hearing. The Claimants seek a declaration from the court that section 39 (4)(f) of the Statistics and Registration Service Act 2007 (SRSA 2007) is incompatible with the European Convention of Human Rights (ECHR) which provides as a fundamental right the right to privacy of data collected by a census. It is argued that this subsection permits lawful disclosure of census material to the US if a request is made in connection with criminal investigation or proceedings.

It is a test case which raises important points of law of significant wider public interest concerning the protection of fundamental rights.

Michael Bates from Birmingham Law Centre says:

‘This case has the potential to significantly impact on the future of public contracts between the UK government and US companies.’

Lockheed Martin is heavily involved in surveillance and ‘cyber security’. It provides surveillance/data processing for the CIA and FBI. A new ‘Security Intelligence Centre’ at Farnborough was opened at the beginning of December 2011. Lockheed Martin Corporation is the lead company behind the current US government Next Generation Identification (NGI) initiative in which $1.6 billion is being spent on biometric developments that will allow many aspects of an individual’s private characteristics to be gathered and stored.

The vice-president Lockheed Martin is quoted as having said, “We want to know what’s going on any time, any place on the planet.”

Mr Simons is concerned that there is no statutory safeguard in place to prevent his information being disclosed.  By refusing to complete and return his census form he faces the real possibility of being prosecuted under section 8 of the Census Act 1920 (CA 1920).

Mr Simons says:

‘Section 8 of the CA 1920 does not allow me to defend myself.  I think that the census breaches my right to a private life under the Human Rights Act and any prosecution for not completing it would be an abuse of process.’

Tony Muman, the barrister who is representing Mr Simons says:

‘The legal case is of fundamental importance. The question of the security of the data of UK citizens is of the utmost importance.’

Because of the unique way Law Centres are funded, this case was initially brought on a pro bono basis and is now funded by the Legal Services Commission.  This important issue may never have been able to get to court without the free work of the Law Centre and the work of Mr Tony Muman.  Counsel has also worked for much of the case on a pro bono basis.

There is a risk that cases like this will not be supported by the Law Centre in future as changes to the Legal Aid scheme will make it harder to fund this kind of work.  Changes to the scheme will come into force in April 2013.

Ends

Notes for Editors:

Law Centres are not-for-profit legal practices providing free legal advice and representation to vulnerable and disadvantaged people.  They are solicitor-led organisations that have rights of hearing and litigation in the highest courts and are members of the Law Centres Federation.

Birmingham Law Centre (BLC) is one of 55 Law Centres in England, Wales and Northern Ireland, staffed by solicitors, caseworkers and in some cases barristers who specialise in areas of civil law including debt, employment, housing, discrimination, welfare benefits, education and immigration.

BLC provides in-depth legal advice and representation, including judicial review, on social welfare areas of law such as: welfare benefits, debt, community care, housing and employment discrimination. Last year, around 2,000 clients were helped and more than 3,500 hours of casework were undertaken.

For further information please call Michael Bates at Birmingham Law Centre on or email: or mobile: .

Nigel Simons and Michael Bates will be in court from 9:30am on 21 June 2012 to take questions.

By Trevor Allsopp and Michael Bates

Birmingham Law Centre granted permission to seek Judicial Review challenging compatibility of UK Census with Human Rights and European Union law

A client of Birmingham Law Centre has been granted permission for a Judicial Review in the High Court seeking a declaration that section 39 (4)(f) of the Statistics and Registration Service Act 2007 (SRSA 2007) is incompatible with the European Convention of Human Rights (ECHR) and European Union law. It is a test case which raises important points of law of significant wider public interest concerning the protection of fundamental rights.  Michael Bates from Birmingham Law Centre said:

‘This case has the potential to significantly impact on the future of public contracts between the UK government and US companies.’

The Law Centre’s client, a longstanding privacy campaigner, refused to take part in the 2011 Census. Our client describes himself as, “an anti-database campaigner and someone who does regard himself as an activist in ensuring the preservation of liberty and privacy.”  He has completed the census in the past but believes that the 2011 census was materially different because of the potential for his personal information to be disclosed to third parties without adequate safeguards being in place.

In August 2008 Lockheed Martin was awarded the contact to run the census. The company is an American organisation with global aerospace, defence and security concerns and is one of the world’s largest defence contractors. The company has statutory obligations under the USA Patriot Act 2001 and carries out a significant amount of work for the CIA and FBI.

Lockheed Martin is heavily involved in surveillance and ‘cyber security’. It provides surveillance/data processing for the CIA and FBI. A new ‘Security Intelligence Centre’ at Farnborough was opened at the beginning of December 2011. Lockheed Martin Corporation is the lead company behind the current US government Next Generation Identification (NGI) initiative in which $1.6 billion is being spent on biometric developments that will allow many aspects of an individual’s private characteristics to be gathered and stored.

The vice-president Lockheed Martin is quoted as having said, “We want to know what’s going on any time, any place on the planet.”

Our client is concerned that there are no safeguards in place to prevent his information being disclosed and used for purposes other than those intended. Of particular concern is the United States legislation which permits the administration to obtain personal information on the grounds that there is a risk to the US national security.

The SRSA 2007 prohibits the disclosure of personal information collected during the census exercise unless one of the exemptions in section 39(4) applies. Section 39 (4)(f) exempts disclosure which is made for the purposes of a criminal investigation or criminal proceedings (whether or not in the United Kingdom).

By refusing to complete and return his census form our client faces the real possibility of being prosecuted under section 8 of the Census Act 1920 (CA 1920). Since 2012 some 369 cases have been referred to the CPS for prosecution of which at least 120 are reported to have been convicted for failing to complete and return their census form. Section 8 of the CA 1920 contains no defence and is a strict liability offence. A declaration is also being sought that a prosecution, in our client’s circumstances, under the CA 1920 is an abuse of process.

Our client is primarily relying on Article 8 of the ECHR, the right to respect for private and family life. He believes that his Article 8 rights are not protected for reasons which include; (a) there is no provision for advance notification of a disclosure request; (b) there is no court scrutiny or other independent supervision which the requesting state must first satisfy in seeking disclosure; (c) there are no guidelines as to when and how such disclosure will be made; (d) there is no provision to allow a person to object to the disclosure and to challenge it before an independent and impartial tribunal; (e) the disclosure of personal information may be made in any circumstances, even on suspicion of committing a minor crime; (f) there is no safeguard as to what use may be made of the personal information by the authorities in the requesting state.

It is also argued that European Union law, in particular Council Directive 95/46/EC and Regulations 45/2001/EC support our client’s case.  His fundamental rights and freedoms, in particular the right to privacy with respect to the processing of personal data, require protection. However, section 39(4)(f) provides no basis for an independent enquiry of the legitimacy of disclosure of his personal data.

We will provide updates as the case progresses in future articles. Please contact Trevor Allsopp or Michael Bates at the Law Centre if you would like to know more about the case, or if you have relevant information to share.

By Jan Jesson

We are delighted with the Court of Appeal ruling on our Article 14 challenge in respect of our client , the late Miss Lucy Trengove.  See here for the full judgement.  As reported in our post of 18 ^th March, the statutory appeal for local housing allowance, joined with the cases for Ian Burnip and Richard Gorry, challenged the discriminatory impact on severely disabled persons needing an additional bedroom of Regulation 13 (D) of the Housing Benefit Regulations 2006.

Although the legislation had been amended from 11/4/11 to make provision for an additional bedroom when a severely disabled person needs to accommodate overnight carers, the appeals in the first 2 cases concerned the period prior to the legislative amendment, when no provision was made for them, and in the case for Richard Gorry, whose two disabled daughters need separate bedrooms of their own, the additional housing need remained unprovided for.

In a significant ruling, the Court of Appeal unanimously held that –

(1) the appellants have established a prima facie case of discrimination pursuant to Article 14 and (2) for the reasons set out in the judgment of Henderson J, the Secretary of State has failed to establish objective and reasonable justification for the discriminatory effect of the statutory criteria . (Kay LJ, paragraph 24)

It was common ground that ‘disability’ was a status falling with Article 14, and that housing benefit falls within the ambit of Article 1 of Protocol 1 as a ‘possession’.  Richard Drabble QC submitted for the Appellants that one way or another, the statutory criteria have a disparate adverse impact on the disabled, or failed to take account of the differences between disabled and able-bodied persons.  Citing DH v Czech Republic (2008) 47 EHRR 3 and Thlimmenos v Greece (2001) 31 EHRR, the different approaches were described as complimentary and overlapping, rather than mutually exclusive.

The Court had no difficulty in recognizing the discriminatory impact of the housing benefit regulations, without resort to the United Nations Convention on the Rights of Persons with Disabilities (CRPD), which Counsel for the Appellants, and Helen Mountfield QC for the Equality and Human Rights Commission, as Intervener, relied upon, holding (para 22)

If the correct legal analysis of the meaning of Article 14 discrimination in the circumstances of these appeals had been elusive or uncertain (and I have held that it is not), I would have resorted to the CRDP and it would have resolved the uncertainty in favour of the appellants.  It seems to me that it has the potential to illuminate our approach to both discrimination and justification.

The Court rejected arguments on behalf of the Secretary of State that the analysis for the Appellants was flawed because it did not use correct comparators (citing the Malcolm case); the criticism that the Appellant’s case was not founded on statistical evidence; and that the Thlimmenos principle is more limited than is suggested, holding –

· It would be quite wrong to resort to Malcolm so as to produce a restrictive approach to Article 14.  Indeed, one of the attractions of Article 14 is that its relatively non-technical drafting avoids some of the legalism that has affected domestic discrimination law. (para 13)

· On the same basis, I would reject the attempt on behalf of the Secretary of State to criticise the appellants’ case for not being founded on statistical evidence.  Whilst such evidence can be important in an Article 14 case (see, for example, Hoogendjik v Netherlands (2005) 40 EHRR SE 22, at page 207), it is not a prerequisite.  Where, as in the present case, a group recognised as being in need of protection against discrimination – the severely disabled – is significantly disadvantaged by the application of ostensibly neutral criteria, discrimination is established, subject to justification.(para 13)

· Whilst it is true that there has been a conspicuous lack of cases post- Thlimmenos in which a positive obligation to allocate resources has been established, I am not persuaded that it is because of a legal no-go area.

· I can see no warrant for imposing a prior limitation on the Thlimmenos principle.  To do so would be to depart from the emphasis in Article 14 cases which, as Baroness Hale demonstrated in AL (Serbia) (at paragraph 25), is “to concentrate on the reasons for the difference in treatment and whether they amount to an objective and reasonable justification”.(para 18)

On the question of justification, the Court gives very clear guidance as to the correct approach.

It is elementary that what has to be justified is not the scheme of HB as a whole, or the general policy of calculating HB in the private sector by reference to the number of bedrooms deemed to be needed by “occupiers”, but rather the difference in treatment resulting from the application of those criteria which has been held to infringe Article 14 (para 26)

The submission for the Appellants that ‘very weighty reasons’ would be needed to justify discrimination in the case of congenital disability, was rejected, holding –

Weighty reasons may well be needed in a case of positive discrimination, but there is no good reason to impose a similarly high standard in cases of indirect discrimination, or cases where the discrimination lies in the failure to make an exception from a policy or criterion of general application, especially where questions of social policy are in issue.  As in AM (Somalia), therefore, the proportionality review applicable in the present case must be made by reference to the usual standard, not an enhanced one.

After detailed analysis of the various benefits in payment Henderson J addresses the question whether the wider benefit context provides an objective and reasonable justification for the discrimination found to be established in relation to the amount of housing benefit.  Drawing a clear distinction between subsistence benefits and benefits in respect of housing needs, he concluded -

It would therefore be wrong in principle, in my judgment, to regard Mr Burnip’s subsistence benefits as being notionally available to him to go towards meeting the shortfall between his housing- related benefits and the rent he had to pay. (para 45)

It is not yet known whether the Secretary of State will appeal to the Supreme Court, but we are gratified that the after a three year fight for the rights of our client and disabled people like her, justice has prevailed, and social security law is not ‘human rights-proof’.

The Claimant was represented by Richard Drabble QC and Desmond Rutledge.

By Michael Bates

Perplexity in the High Court on how to apply Zambrano principles as interim relief JR – Sanneh v Secretary of State for Work and Pensions – is refused

Birmingham Law Centre’s groundbreaking Income Support case continues onwards to the Upper Tribunal now that permission to appeal has been granted to the DWP.  In the mean time, however, the High Court has refused permission for a Judicial Review of the decision to suspend our client’s payments of benefit pending the outcome of the Secretary of State’s appeal.

Back in August last year we applied for Interim Payments of Income Support prior to any decision on entitlement.  This was on the basis that our client  was experiencing hardship and that her daughter, an EU citizen, was being prevented from enjoying the substance of her rights as a citizen of the union and would (due to economic pressure) be forced to leave the territory of the EU.  Please see our previous blog posts here and here for details.

The First-tier Tribunal appeal was heard on 28 November last year and the Tribunal Judge agreed with the contention that our client came within the principles of the Zambrano judgement.  The effect of the statutory provisions excluding her from mainstream benefits created a situation where her stay in the UK would become untenable.  As her daughter would have to accompany her abroad, this amounted to denying her daughter the enjoyment of the substance of her rights as a union citizen and therefore breached EU law following the landmark ruling in Zambrano .  The DWP have now lodged an appeal with the Upper Tribunal which we hope will be expedited.

It was clear to us that the claim for Income Support would be resisted and that the proper route to a sustainable challenge was through the statutory appeal process (ie, the tribunal).  However, an early decision by the High Court on the lawfulness of refusing Interim Payments would perhaps give us an indication as to how Zambrano principles would be interpreted by the Courts.  Unfortunately, the High Court has decided not to help settle how Zambrano should be applied and, in an interesting judgement, HHJ Purle said that:

‘the precise impact of Zambrano has had a number of us judges scratching our heads and the right is not clearly defined.’

The Secretary of State’s arguments that, ‘ Zambrano is not a right to benefits’, and that any risk to an EU child leaving the territory of the EU must be immediate, seemed to be persuasive.  Our argument has always been that it is the effect of the national measure as opposed to the measure itself that is of fundamental importance and that the lack of means would sooner or later lead to a situation where our client would be forced to leave the UK.   Indeed, it was this more nuanced approach that was taken by the First-tier Tribunal.

The case before the High Court changed character as time had passed.  The claim for Interim Payments gave way to a claim against the Secretary of State’s decision to suspend benefit whilst he considered an appeal to the Upper Tribunal: a subtle but important difference. Our client has recently lost the Child Tax Credit that she had been receiving and is now being housed in emergency accommodation arranged for her by Birmingham Children’s Services.  She currently has an income of £56.53 per week that is not being topped up by Birmingham.  By anyone’s standards, this is hardship and has an undeniably detrimental effect on her and her daughter.  However, the Judge held that he would only take into account the circumstances pertaining at the time of the decision to suspend payment of benefit, when she was receiving Child Tax Credit.  The Judge also made reference to the Secretary of State’s offer to reconsider the suspension in light of these changed circumstances.

Of course, it was never for the High Court to decide the substance of the claim for Income Support but the Judge had to look at whether we had a strong enough case to challenge the decision to suspend payment of the the award of Income Support made by the tribunal and so to properly assess the balance of convenience in order to grant interim relief.  He decided that our case did not overcome the first hurdle and that it was not sufficiently arguable stating that:

‘Given that the Claimant was living sustainably though not lavishly at the time the decision to suspend benefit was made, it seems to me that the potential challenge to the letter of 15 December does not get off the ground.’

We believe that our argument that, on the basis of Factortame , our client’s daughter’s EU rights should be effectively safeguarded has not been given sufficient weight and we are actively considering an appeal to the Court of Appeal.

The Claimant was represented by Desmond Rutledge of Garden Court Chanbers.

By Michael Bates

Despite the Court of Appeal judgement in Birmingham City Council v Clue bringing clarity to the issue of when a local authority has a duty to provide accommodation to destitute children whose parent’s immigration status is not settled, social workers and Children’s Services managers continue to use the threat of removing children from families to avoid providing services under section 17 of the Children Act 1989.

It has now been two years since judgement was handed down but it remains a significant decision and one which has had a positive impact on the children of many undocumented migrants across the UK.  However, we continue to hear from clients who have been advised by social workers that, in spite of the decision in Clue that separating the children from their mother would be unlawful, they can only provide accommodation for their child.  Clients come to us at the Law Centre and tell us that they are frightened to continue talking to social services because they don’t want their children taken from them.  Many social workers appear to have been told that, ‘section 17 is just a very small fund that we can’t really apply for’.

Colleagues at ASIRT, a charity providing advocacy support to people subject to immigration control, report examples such as that of a single mother of a ten year old daughter, herself resident in the UK since the age of 15, approaching the Local Authority for help only to be told that nothing, other than the provision of section 20 foster care support for her daughter, could be made available. Dave Stamp, Manager at ASIRT, told us that:

‘this refusal of support has left the service user with an ever-spiralling debt problem and considerable emotional distress. Birmingham City Council steadfastly refuses the presence of advocates during assessment processes, further weighing the balance of power against the impoverished and frequently traumatised client.’

In 2008 Birmingham Law Centre successfully challenged Birmingham City Council in the High Court over their decision to refuse to provide support to Ms Clue and her children.  Birmingham Law Centre’s, Yasmeen Qazi, began to defend the subsequent appeal brought by Birmingham.  Public Law Solicitors then took conduct of the case and steered it successfully through the Court of Appeal.  Ms Clue was represented by Stephen Knaffler QC and Nadine Finch of Garden Court Chambers.

Ms Clue had arrived in the UK from Jamaica in 2000 and, in 2008, applied to the Home Office for leave to remain on the basis that her eldest child had been in the UK for more than 7 years.  At that time, the Home Office was still operating the ‘seven year rule’, a concession within the immigration rules allowing applications for leave to remain for those with children who had lived in the UK for 7 years or more, and which was effectively re-introduced by the judgement EM and Others (Returnees) Zimbabwe CG [2011] UKUT 98 (IAC). Birmingham refused to provide support and accommodation under Section 17 of the Children Act 1989 on the grounds that the family could return to Jamaica.  They had ignored the fact that Ms Clue and her children had established an Article 8 private life in the UK and that it would therefore be a breach of their ECHR rights to force them to return.  The Court held that it was not acceptable to use an Article 8(2) qualification, ‘by reference to the even more pressin g claims of others on the budget’.

The case turned on whether it was right for Birmingham to assess the merits of Ms Clue’s application for leave or whether this should be left to the Home Office.  The Court of Appeal held that it was not the local authority’s decision to make unless the application was clearly hopeless or abusive.  Dyson LJ also held that the financial circumstances of the local authority should have no bearing on the outcome of the application:

‘ It [would be] unfair and arbitrary if the outcome of a person’s application for leave to remain depends on the budgetary priorities of the particular local authority to which the claim for assistance is made. ’

Let us also not forget that, but for the potential breach of Ms Clue’s rights under the European Convention on Human Rights, she would have been caught by the pernicious effect of section 54 and schedule 3 of the Nationality, Immigration and Asylum Act 2002.  This piece of legislation outlined provisions for support to be withdrawn or withheld from certain classes of migrant, including refused asylum seekers and persons, like Ms Clue, unlawfully in the UK. 

The impact of this decision has been felt across the country and by countless families faced with destitution and nowhere else to turn.  For the last two years we have continued to help families in similar circumstances to Ms Clue and her children to access services from the local authority.  Unfortunately, just at the point when children find themselves in the greatest need, local authorities in the Midlands have attempted to ignore the pleas for help until reminded of their responsibilities under the Clue Judgement.

By Emily Johnson

Introduction

On 13 May 2010 Liam Byrne MP, former Chief Secretary to the Treasury, somewhat ominously forewarned his successor that “there is no money”. The latest figures indicate that the UK has amassed a national debt totalling £770 billion, upon which it is paying interest at the annual rate of around £43 billion.  

It is estimated that the legal aid cuts in the Legal Aid, Sentencing and Punishment of Offenders Bill will achieve cost savings of £350 million. However, as I shall argue in this article, the projected cost savings represent a false economy. In my view, the provisions in the Bill are likely to spell the end of neighbourhood Law Centres and will result in legal aid practitioners moving out of legal aid work, if not leaving the profession altogether.

The Role of Law Centres in Deprived Communities  

There are at present 56 Law Centres across England, Wales and Northern Ireland. These are not-for-profit organisations which provide free legal advice and representation to local communities, predominantly in relation to housing, debt, employment and welfare benefits. Law Centres receive payments from the Legal Services Commission on a case by case basis, under a standard legal aid contract. Figures released by the Law Centres Federation show that one in three Law Centres rely on legal aid contracts to provide at least 60 per cent of their annual funding. A number of Law Centres receive annual local authority grants in addition to legal aid funding, but such arrangements are becoming increasingly rare and in any event are generally quite modest in value.    

On 13 May 2010 I was working at Saltley and Nechells Law Centre in Birmingham, in the heart of Liam Byrne MP’s Hodge Hill constituency. The reality of there being “no money” was becoming horribly clear.

Saltley and Nechells Law Centre was sited in one of the most deprived areas of the country. The Hodge Hill Constituency recorded the second highest rate of unemployment benefit claims in the UK in May 2010, according to figures published by the House of Commons on 16 June 2010, in Research Paper 10/43. Hirsch and Beckhelling, on behalf of the Campaign to End Child Poverty, estimated that 45 per cent of the children in the Hodge Hill Constituency were living below the poverty line in 2010.  

Over a twenty year period the Law Centre played a key role in facilitating access to justice in the community, by providing publicly funded housing, debt and welfare benefits advice and representation to local citizens. Within a mere six weeks of my appointment, I was offering legal advice to some of the most vulnerable members of society, including victims of political torture, domestic violence victims, people with substance abuse issues as well as those detained under the Mental Health Act.

The Law Centre was involved in a number of ground-breaking cases and performed its role with a high degree of success. In particular, it represented the appellant in a landmark decision against Walsall Metropolitan Borough Council, in which the First-tier Tribunal (Social Entitlement Chamber) held that the Local Housing Allowance Regulations discriminate against people who require an extra bedroom for a live-in carer, thereby contravening the European Convention on Human Rights.

The Plight of Law Centres under the Current Legal Aid Scheme

However, the Law Centre was experiencing financial pressures on an unprecedented scale. The overheads involved in running even a modest community Law Centre are high. These include the rent of premises, the salaries of solicitors, fee earners and administrative staff, fuel bills, telephone bills, stationery, postage, professional indemnity insurance premiums, photocopier hire fees and subscriptions to practitioners’ texts.

Save for the modest proceeds of its fundraising efforts, Saltley and Nechells Law Centre was dependent on legal aid to fund its service. In respect of each welfare rights case, it received a standard fixed fee of £167.00 excluding VAT. The fixed fee was the equivalent of three hours’ work on the case at an hourly rate of £55.60. The Law Centre was paid on closure of the case, notwithstanding the fact that many cases take several months or even years to close. This was particularly true of cases being appealed to the Upper Tribunal or the Tax Adjudicator.

The Law Centre received no additional remuneration if it spent more than three hours on a case, except where a fee earner spent over nine hours on it. Under these circumstances, it received remuneration for the actual amount of time spent on the case, at the rate of £55.60 per hour.

The difficulties with this system are threefold. Firstly it creates an incentive for organisations to cherry-pick those cases which can be closed with the minimum amount of time and effort. The Law Centre refused to cherry-pick cases and as a result, found it difficult to make publicly funded work financially viable. However the deployment of a cherry-picking strategy defeats the concept of access to justice – the very raison d’etre of a legal aid scheme.    

Secondly, the system creates an anomalous situation, where a case that falls just short of the three times limit is only paid at a fraction of its true value. Under these circumstances, legal aid practitioners might be tempted to generate unnecessary costs purely to tip the case into the “exceptional category”, thereby generating a fee which befits the actual level of time and effort invested in the case.

Thirdly, and perhaps most fundamentally, the overwhelming majority of cases fall between these two extremes. These cases result in a net loss to the organisation, since the value of the work conducted on the case exceeds the standard fixed fee payable. From a purely financial perspective, these are the least desirable cases to open.

The upshot was that the level of remuneration available for legal aid work was simply insufficient to meet the Law Centre’s overheads. The poor rate of remuneration created severe cash flow problems, resulting in the deferral of staff salaries. On 13 October 2010, having assisted thousands of clients over a twenty year period, the Law Centre went into administration.  

The closure of the Law Centre has had the following impact on the local community:

Ø       Tenants are now less likely to oppose applications for possession orders, which may lead to an increase in evictions and homelessness in the constituency. According to a report by the New Economics Foundation each local authority eviction will cost the taxpayer £34,000, compared to the £174 cost of 9.5 hours of legal advice.

Ø       Employees who are unfairly dismissed by their employers are now less likely to seek legal advice, with the result that valid claims are less likely to be identified and brought within the limitation period.

Ø       Unfavourable welfare benefit decisions are now less likely to be appealed, leading to lower household incomes, increased child poverty and increased social exclusion. Figures published by the Ministry of Justice on 1 December 2011 reveal that 40% of First-Tier Tribunals (Social Entitlement Chamber) find in favour of appellants appealing against decisions not to award them incapacity benefit.

Ø       Local citizens facing debt are now less likely to seek advice, resulting in an increase in bankruptcy orders and mental illness in the area.  

The Legal Aid, Sentencing and Punishment of Offenders Bill (LASPO)

In the current economic climate, the need for neighbourhood Law Centres has never been greater. However, far from investing in them, the Government is doing the exact opposite.

The new LASPO Bill proposes to abolish entitlement to legal aid altogether in respect of employment law, welfare benefits and debt which does not threaten homelessness. Housing law will face a 40 per cent reduction in scope. The proposals will therefore remove the bulk of legal aid funding from Law Centres’ main practice areas, leaving them without the financial means to continue their work. Furthermore, the Law Centres that currently receive local authority funding will face a 53 per cent cut in their annual funding over the coming year.

The cumulative effect of cuts in legal aid and local authority funding will be to starve Law Centres of much needed funds and force them to close. It is therefore likely that the experience of Saltley and Nechells Law Centre will become a more regular occurrence.   

 

Emily Johnson LLB member of Middle Temple, spent a year working with Saltley and Nechells Law Centre and now volunteers with Birmingham Law Centre.

This article first appeared in the March 2012 edition of Counsel Magazine .

Sanneh v Secretary of State for Work and Pensions : Adjourned High Court hearing listed for 30 April 2012.

Birmingham Law Centre are applying for interim relief within judicial review proceedings pending statutory Income Support appeal on basis case comes within Zambrano principles and such relief necessary to give effect to EU law.

At the same time as appealing against the decision to refuse to award Income Support, we assisted Ms Sanneh with an application for interim payments of Income Support on account, pending the outcome of the client’s appeal to a First-tier Tribunal.  After her appeal was allowed by a First-tier Tribunal on 28 November 2011, the Department sent a letter to our client advising her that they ‘cannot’ pay Income Support as they had asked for a statement of reasons and were considering a further appeal to the Upper Tribunal.

We immediately notified the High Court in Birmingham and were given a date for a renewal hearing.  Unfortunately, the Tribunals Service did not produce the statement of reasons for the appeal decision until the day before the hearing which was held on 7 February 2012.  The Department were able to argue that they simply hadn’t had sufficient time to consider whether or not they would appeal to the Upper Tribunal and successfully argued for an adjournment.  They also said that the question in front of the Court could no longer be about interim payments as, following the First-tier Tribunal’s decision, benefit had been suspended.  The DWP therefore argued that the judicial review (in respect of the decision to refuse interim relief) was academic and should be dismissed or the application should be adjourned while it considered whether to appeal.  However, HHJ Purle accepted that if the Secretary of State were to decide not to appeal then payment of benefit would be restored and there would be nothing for the Court to determine.  HHJ Purle (sitting as a deputy Judge of the High Court) adjourned the hearing for a month and reserved it to himself.  The case has now been listed for 30 April 2012.

The outstanding issue in the Administrative Court is whether the decision to suspend payment of Income Support whilst the Secretary of State appeals to the Upper Tribunal is lawful.

We have always argued that Ms Sanneh’s daughter’s rights under European Union law as declared by the Zambrano judgment cannot be given full and immediate effect unless the High Court grants interim relief - R v Secretary of State for Transport, Ex p Factortame Ltd (No 2) is authority for this.  Factortame also established that in social welfare cases, where damages are not appropriate, the ‘balance of convenience’ test for granting interim relief is modified to include a consideration of the wider public interest.  When this is applied to a case involving European law, the applicant will only cross that threshold if they can demonstrate that there is a strong prima facie case (or a strongly established case on the merits) that the national measure being challenged is incompatible with EU law.

In his reasons for refusing the application for interim relief on 22 September 2011 HHJ Judge Robert Owen (sitting as a Judge of the High Court) said that the balance of convenience does not support the making of a mandatory order as the Claimant’s contention that she has a derived right of residence is ‘weak’ for the reasons given by the Secretary of State (in his Acknowledgement of Service).

We believe that the subsequent decision of the First-tier Tribunal to award Income Support proves that Ms Sanneh’s case is clearly not weak and that she should be granted interim relief.  It will be for the Court to take a ‘provisional view’ of the merits and then determine whether interim relief is necessary to avoid a breach of EU law.

The client is being represented by Desmond Rutledge of Garden Court Chambers who has provided assistance with both the judicial review and the statutory appeal.

We would still like to hear from practitioners with similar cases and are willing to offer help where we can.  We can send you a copy of the (anonymised) statement of reasons for the Income Support appeal decision.  Contact us at .  Please also contact us to refer clients in similar circumstances.

Michael Bates

March 2012