Shine A Light

Legal aid and arbitrary power

Today marks the final reading of the legal aid bill in the Lords. If - as seems likely - the bill goes through, 'ordinary people' in Britain will be shocked to discover how thin is their access to law when things go wrong. Deborah Padfield, whose work has for several years been funded by legal aid, considers a measure whose significance echoes through our democratic system.

Deborah Padfield
27 March 2012

There’s a perverse pleasure in working with people on their benefit claims. The system is so over-complex, the Department for Work & Pensions staff so overstretched and – it seems – undertrained, the letters to claimants so numerous and mutually contradictory that error ’n' muddle is its middle name. Being on benefits, save for the tiny minority of skilled frauds who enjoy working the system, is a nightmare. So it’s satisfying to make it work a bit more fairly.

Last Monday started with a bounce. A phone call from an ecstatic client (call her Jenny – not her name), whom I recently helped with her Employment & Support Allowance medical questionnaire. When she’d last had to complete one, six months earlier, she’d been turned down and I’d worked with her on the appeal. Now she’d been granted ESA for 18 months. A whole year and a half of knowing where her money was coming from without the need of further assessments, able to carry on fighting for recovery unshadowed by yet more insecurity. She has post-traumatic stress disorder as a result of rape and other violence – not an uncommon situation.

Welfare benefits have a bad press: bunch of scroungers and frauds, say some. For most of the people I see, the right decision (legally right, just, fair, on the basis of their problems) is a matter of manageable life or nightmare.  Where life is dominated by fear, pain, fatigue, self-hatred, mood swings or the warring realities of psychotic voices, being told to look for work is a malign joke. People generally long for employment – for work more companionable, respected and remunerative than their daily struggle with disability. Maybe they can manage some volunteer or even very part-time work, moving slowly towards recovery, building strength over time. I’ve seen people return to employment that way, in joy and justified pride. But an overhasty fitness verdict means disaster: unmanageable Job Seeker requirements; loss of income, including loss of rent and home.

Jenny’s is a human story, and a cautionary tale. Access to law is a pillar of a functioning democracy. My job is to ensure that the law is properly applied to decisions on people’s disability benefits. Routinely, it is not. Looking at the government statistics on ESA decisions, the number of people on ESA after appeal seems to be some 9% higher than the previous quarter, appeals having a 38% success rate. [DWP Statistical Release, Jan 2012]

Those figures don’t show the people whose decisions were overturned by JobCentre Plus after a request for reconsideration (the route I use most - saving the State considerably more than I earn), those who couldn’t cope with the strain of appealing to a Tribunal and those who, not knowing what the Tribunal needed, failed to make their case. It’s those latter groups that bother me.

On 7th March, the Lords voted against the government’s plans to cut legal aid for welfare benefits, including appeals to the Upper Tribunal. The Commons will doubtless reject the Lords’ stand, perhaps by citing ‘financial privilege’ as they did with Welfare Reform. The rationale for cutting legal aid for welfare benefits, among other areas, is that these are simple matters which claimants can argue alone. Specialist legal advice is not needed.

Some of my work is, indeed, applied common sense – spotting where the Atos Healthcare assessment has failed to record the evidence accurately (common problem) or where the JobCentre Plus decision-makers have failed to weigh that evidence against what the claimant says (another common problem). A lot is more than that. Even if it’s relatively simple, it often depends on knowing the law and the legal process.

For why should ‘Mrs Adams’, with her arthritic legs, realise that if she doesn’t explain that she can’t use a stick because of her arthritic hands and shoulders, the decision-maker will assume she doesn’t need one? She doesn’t like making a fuss about her problems, and she doesn’t see the relevance. So her evidence is lacking.

I had another massively relieved client the other day. I won’t say ‘happy’ because he (‘Mike’) is desperately anxious about being a ‘benefit scrounger’. He is disabled by anxiety, including social phobia - another rape victim, incidentally. He’s just starting a long course of psychotherapy. Mike emailed us when the Tribunal turned him down for ESA as, unable to force himself to go to Job Seekers’ interviews, he faced destitution.

The Upper Tribunal agreed to set aside the first-Tier decision, made in Mike’s absence as he’d ducked going to the hearing alone. Fat chance of him being able to get there. It was plain from the papers that a fair decision depended on questioning him. At the further hearing, with Mike present with his support worker and backed by evidence not just of his diagnosis but of his functional disabilities, there was no problem. He was put into the ‘support group’ for the most disabled people.

Where physical and mental health problems interact, it’s more complicated. I’m working with a woman with fibromyalgia, a disaster area for disability benefit assessments. Decision-makers discounted her problems under the mental health ‘descriptors’ on the grounds that their cause was physical – fatigue. Bring on the case law which says that the presence of a specific mental disorder is not a prerequisite for considering the mental health descriptors (CE 2323 2010). Like many, this decision should be easily overturned at reconsideration. If, that is, you know the law. 

When legal aid for welfare benefits disappears, Citizens Advice Bureaux and Law Centres will lose their advisers like leaves in autumn. Other sources of funding are thin and few volunteers, backbone of Citizens Advice Bureaux as they are, want this level of responsibility or specialisation. Meanwhile, need walks through our doors every morning, emails us and rings us, seeking help to appeal decisions about overpayments that weren’t, underpayments denied and disputed entitlements whose ‘truth’ lies deep in the windings of welfare benefit law. If Mr Djanogly, under-Secretary of State at the Ministry of Justice, believes that benefits are common sense, or that Job Centre Plus contact centres are competent to advise, then truly it’s now ‘high time to awake out of sleep. But maybe St Paul didn’t feature on his lawyerly reading list.  

Perhaps it should have done, for the Epistle to the Romans is about power and authority, justified and unjustified. Such questions make the bonfire of legal aid even more desperately important than the benefit cuts which leave poor people poorer. Without legal advice, a legal system is a sounding gong or clanging cymbal: empty. Without a functioning legal system, democracy is dead, for democracy is rooted in people’s ability to effectively challenge power.

What I see on my desk, writ small and lacking drama, is the threatened exercise of arbitrary power. Decisions are being taken in spite of evidence or on the basis of its often-outrageous distortion; if these are allowed to stand, then decision-making becomes arbitrary. 

Even those untroubled by human anguish should care about this, for if it goes unchecked it threatens our most basic liberties. 

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