In April, as most welfare benefits work was taken out of the scope of legal aid, public funding for advice on social security law stepped off a cliff. In this two-part article,
Tom Royston suggests four strategic approaches to keep welfare rights legal aid work alive. It is aimed at generalist advisers as well as specialist lawyers because, although much of the work will be done at a specialist level, it will almost invariably be generalists who have the vital task of spotting the cases in the first place.
The recent scope changes were not just a case of turning back the clock to the 1980s or 1990s. Back then, a large amount of welfare rights work was funded at a local level, typically by local authorities. Over the years, fortified by the argument that legal aid provided adequate alternative coverage, many local authorities have reduced their own provision. In the current climate of cuts and job losses there is no prospect of local authorities refilling the gap. So one might think we are back to the 1970s, before many welfare rights specialists existed at all.
Except – hold on – in the 1970s, social security law was relatively simple. Now, the standard reference books of Social Security legislation run to 6,612 pages,[see footnote 1] and the official Decision Makers’ Guide (which does not even deal with the benefits administered by HM Revenue & Customs (HMRC) or local authorities) contains 14 volumes. The general public’s need for advice is correspondingly greater than 40 years ago. So the situation in 2013 is, in fact, unprecedented.
Finally, if all that does not seem like enough of a car-crash scenario, consider that the government is introducing universal credit (UC) and the personal independence payment this year: the biggest shake-up of social security law and practice in a generation (see also page 20 of this issue).
(1) Look out for disability discrimination
Consider the following case studies:
- A jobseeker’s allowance (JSA) claimant with learning difficulties is sanctioned for failing to apply for a job. The reason she has not applied is that, because of her disability, she cannot read and write properly. She does not understand the form she is given to appeal against the sanction decision. Furthermore, she remains unemployed as she is not getting effective support to help her into work. The DWP knows about her learning difficulties because they are immediately obvious to anyone who meets her.
- A partially sighted disability living allowance (DLA) claimant cannot read the correspondence she is sent by the DWP, fails to do what is asked of her, and so her benefit is stopped. The DWP knows she is partially sighted and needs large print because it was explained on her original DLA claim form.
- A JSA claimant with arthritis cannot get to the Jobcentre to sign on fortnightly without suffering excruciating pain the next day because of his limited mobility. He misses one session, tries to telephone but cannot get through, and his benefit stops as a result. The DWP knows about his arthritis because he tells the signing on officer about it every fortnight.
- An employment and support allowance claimant with mental health problems is undergoing the work capability assessment. His GP and psychiatrist know him well and could give useful evidence about how his condition affects his ability to work but, because of his disability, the claimant himself is not able to organise the submission of that evidence. The DWP decision-maker does not consider contacting the claimant’s doctors, and makes an adverse decision. The DWP knows about the claimant’s disability and its likely effects because it was disclosed on his original claim form.
These are all fairly commonplace scenarios. In many cases, the response of welfare rights advisers is to appeal the unwelcome decision. Where an adviser has time, s/he may also consider making a complaint. What has rarely been contemplated is that each of these scenarios discloses an arguable disability discrimination claim against the DWP in the county court (see EqA ss29 and 114(1)(a)), probably most straightforwardly put as a failure to make reasonable adjustments, in which the claimant may seek not only a declaration of discrimination and an order that the DWP takes or avoids a particular course of action, but also damages. The advantage of such an approach is that discrimination claims remain potentially within the scope of legal aid.
The claims above need not necessarily be limited to private law claims. In R ((1) MM (2) DM) v Secretary of State for Work and Pension s  EWHC 2106 (Admin), 26 July 2012, permission for a judicial review was granted on facts similar to those outlined in the fourth scenario above; and on transfer to the Upper Tribunal, has succeeded, though the remedy has not yet been determined:  UKUT 259 (AAC). However, the use of public law is not in all cases necessary, and individual clients’ needs may be better suited by the less complex and less expensive procedure of a discrimination claim in the county court.
Disability is not the only type of discrimination claim potentially available to social security claimants. For example, it may be argued that the delays in benefit processing experienced by non-UK nationals, painfully familiar to all welfare rights workers, could in some cases amount to indirect race discrimination. However, it is likely that disability claims will constitute the field of greatest potential growth. The principal reason for this is the government’s decision to expand the role of conditionality in the benefits system. That decision creates equally expanding burdens on government to adapt the conditionality to individuals’ disability needs. If the government has not taken steps to respond to this (and there is little sign that it has), it will only have itself to blame when litigation ensues.