Tag Archives: Workfare

Call me a cynic but…

I got a tweet in response to The Day Justice Died saying:
“call me a cynic but Govt blocking access to the law at same time as other attacks shows lessons learned from #workfare”.
I wouldn’t call that cynical. If anything, I’d say it doesn’t go far enough. Yes, the current round of cuts is brutal. It fits neatly in with all of the other cuts and makes it considerably more difficult for people who are affected by them or by the state of the economy generally but cuts in Legal Aid are nothing new. The introduction of modern Legal Aid was one of the many post-war measures to create a fairer society (although the roots of the principle of access to justice lie in the Magna Carta). Created by statute in 1949, it sat alongside the NHS and the modern system of social security. But while the NHS is a national treasure, Legal Aid unifies people in a different way: a national punching bag. Might the imminent destruction of all of Legal Aid’s more popular siblings be what it takes to make people see its value? Like the plain, dull sibling in a Jane Austen novel; Legal Aid has been sitting, rejected and forlorn in the corner for so long that I wonder how many people ever think of it at all. The Tories didn’t sneak up out of the mist and slit Legal Aid’s throat on the 1st April. Legal Aid has been slowly starving to death for a generation and arguably stands as a lesson to its more popular siblings.

In 1945 a Parliamentary Committee included the following recommendations in its report (acknowledgement goes to Save Legal Aid, who I’m quoting heavily here):-
– Legal aid should be available in all courts and in such manner as will enable persons in need to have access to the professional help they require.
– This provision should not be limited to those who are normally classed as poor but should include a wider income group.
– Those who cannot afford to pay anything for legal aid should receive this free of cost.
– There should be a scale of contributions for those who can pay something toward costs.
– The cost of the scheme should be borne by the state, but the scheme should not be administered either as a department of state or by local authorities.
– The legal profession should be responsible for the administration of the scheme.
– Barristers and solicitors should receive adequate remuneration for their services.

As a lawyer with lefty-leaning views, that all sounds fair and sensible and when Legal Aid began in 1950 it followed those recommendations. Some people would (I confidently predict because they always do) criticise lawyers over the “adequate remuneration” recommendation. The average annual salary of a Legal Aid solicitor is £25,000 (just below the national average). The difference between the “fat cats” and mere mortals doing Legal Aid work and/or working in the high street is vast but you only ever really hear about “fat cats”. Incidentally, by way of comparison, GPs earn an average of £90,000 per year (I’m not knocking them for it but come on, it’s a massive pay differential). In 2009 Jack Straw told Legal Aid solicitors they shouldn’t expect to be paid as much as doctors and should model themselves on optician chains instead (the one time I used Boots opticians they fucked up my sight test and I had to get an independent optician to redo the test a few weeks later but, hey, this is your justice system, right?). Jobs which routinely pay more than the average salary for a Legal Aid solicitor include teaching, police, fire brigades and (according to the Law Society Gazette a couple of years back) bin men. It’s a wonder anyone offers Legal Aid services at all.

In 1950 80% of the population was entitled to Legal Aid, the amount being based on a means test. Some people had all of their costs paid but many others received a contribution. If that system was still around today, I would be able to afford legal fees. Until the 1970s most cases involving Legal Aid were criminal and family cases. In the 1970s, another period of vast economic upheaval, employment and housing claims rose. Even by 1973 though, the proportion of the population entitled to claim Legal Aid had dropped to 40%. At one time Legal Aid was even widely available for will writing. That might sound odd but anyone who has children (particularly if they’re unmarried) should have a will, even if all their possessions added together aren’t worth £100, because their children need a guardian. By 2008 29% of the population was entitled to Legal Aid. This figure rose to 36% in 2009, not because the means test changed but because of the impact of the financial crisis on claimants’ incomes. While the number of people eligible has changed over time, other efforts have long been underway to reduce the cost of Legal Aid. Labour called the 1st April a “day of shame” for the legal aid system but it made plenty of cuts and reforms of its own during its time in office (never forget this about New Labour: before we even had a chance to celebrate the fact that Michael Howard was no longer Home Secretary in 1997, Jack Straw said to my Criminology lecturer at a party, “the trouble with you lefties is”). In particular, the rates paid for Legal Aid work and the method of winning contracts to do Legal Aid work both led to reductions in the number of lawyers doing it. Legal Aid was only limping along by May 2010 and Labour would have cut it too if it had been reelected.

As of the 1st April, even people on income based benefits such as JSA are subject to stricter tests. The categories of work for which Legal Aid is now available have been slashed but are complicated by the exceptions and concessions gained through the course of a brutally long fight against the LASPO (all credit to the House of Lords who did what they could to make Lord McNally’s life a misery each time the Bill came back to them and kept fighting on the implementing regulations). All told, it’s estimated that about 600,000 will lose entitlement to Legal Aid (to put that in context, it’s estimated that the Bedroom Tax will affect 660,000 claimants). The Bar Council’s guidance on the new regime runs to 69 pages so I’m not giving you anything but a snapshot. There are other cuts and other exceptions. Matters civil Legal Aid is no longer available for include:

Family cases which don’t involve proven abuse, forced marriage or the protection of children and aren’t public law care/adoption proceedings;

Employment cases unless they’re under the Equalities Act or involve human trafficking;

Medical negligence except for babies who suffer serious neurological harm in limited cases (personal injury claims other than medical negligence were dropped years ago);

Social Security cases unless and until they’re appealed to the Upper Tribunal and above on a point of law (and only on a point of law);

Education unless the child has special needs;

Housing cases except where there is serious disrepair, the threat of eviction, the claimant is homeless or to defend Council anti-social behaviour action;

Debt except where bankruptcy or repossession proceedings are threatened;

Consumer law and contract law;

Criminal injuries compensation;

Immigration cases which aren’t actual asylum applications or where the person is detained or a victim of domestic violence or human trafficking. Applications for asylum support aren’t covered unless the person has also made claims for housing and financial support.

The rump left in addition to the exceptions above includes mental health, community care, judicial review, abuse of position or powers by a public authority, breach of Convention rights by a public authority (not all human rights cases are covered though), facilities for disabled people and equality claims. Nb “mental health” means Mental Health Act proceedings. The same rules apply to mentally ill people in areas like Social Security and Housing as apply to people who don’t suffer from mental illness. The stricter means test I mentioned above applies to all of these areas and tests relating to the prospect of success and whether alternatives to Court have been pursued remain.

Turning to the Workfare case, this case muddies the waters if you’re trying to work out what Legal Aid is now available for and why cuts were made. It was an application for judicial review (for which Legal Aid continues to be available, although the signs are that the Government wants to cut Legal Aid for public law claims too) but Cait Reilly and Jamie Wilson won their earlier appeals against the sanctions on them on the basis that there had been breaches (which were admitted by the DWP) of the Regulations anyway. Two different things were going on. They could have accepted their own individual wins at an earlier stage and walked away but they pursued the legal principle. If it had only ever been a simpler appeal against sanctions, without the opportunity to claim judicial review, it would be a different matter and Legal Aid wouldn’t be available below the Upper Tribunal under the new system. The availability of Legal Aid for judicial review (for the time being) gives a glimmer of hope in the whole mess we’re facing and lawyers with public law expertise are fighting but it’s a big picture right. Anyone run over by the juggernaut of “reforms” will find it much harder to get any kind of remedy in the meantime.

For benefit appeals without public law aspects, this is an area where the Lords seemed to have won the hugely important concession of retaining Legal Aid for appeals but what we got in the end was Legal Aid only for appeals on points of law in the Upper Tribunal and above and not for first stage appeals. Firstly, something like an appeal against a Work Capability Assessment is more likely to revolve around medical evidence and therefore wouldn’t be covered in any event. The other crucial thing is that Legal Aid won’t be available right at the start of the process of appealing a welfare decision. When I was on Incapacity Benefit my claim was wrongly reduced on a technical point of law. Fortunately for me I’d studied social security law so it was easy for me to check it out and to literally quote its own Technical Manual back at the DWP. One letter was enough to get it sorted out. It’s a complex system though and the vast majority of people could use some guidance navigating it. Having read the last couple of paragraphs, you probably agree that it takes a certain amount of time and skill just to identify whether an appeal is based on facts, a point of law or public law!

It could be said that it’s not the end of the world not to be able to get a solicitor or barrister to advise claimants directly through a law firm or chambers right at the outset. That’s what the Government wants us to accept and, in the short term, it would be true if other sources of advice such as the CAB are available but that’s a big ‘if’ because they’ve been reliant on Legal Aid too and are heavily reliant on lawyers donating time to them. Charities providing welfare advice are having a very hard time (earlier this week I tweeted a letter from Shelter published in my local paper announcing the closure of an advice centre) and it’ll get tougher as the reforms to social security take hold. It’s safe to assume they’ll be utterly swamped by people needing advice on things like the Bedroom Tax and PIP. Because it’s a highly technical statute based area of law, I’m not convinced it lends itself very well to casual volunteering by lawyers who work in other fields either (assuming we want people to get high quality advice). The Government says it’s set aside £65 million of lottery money over the next two years for legal advice centres, seemingly immune to the irony of using lottery funds to support a justice system which is a postcode lottery.

The immediate availability of early legal advice is a short term problem but the long term problem with removing Legal Aid for all early legal advice is how we gain new lawyers specialising in these areas. It will be harder for junior lawyers to get experience and (see pre-LASPO pay rates above) financially unviable for many young lawyers who need to work and need some assurance of job prospects in the long run, no matter how idealistic they are. Private work in areas like family and employment will feed new lawyers into those areas (although the number of firms offering Legal Aid services in those areas will, as it has been doing for years, continue to shrink) but what about social security law? It’s hard to imagine many will enter such an insecure area. As that happens there will be less competent lawyers available for the stages of upper appeal tribunal through to Supreme Court even though those stages are still covered by Legal Aid and, as I’ve said, people would still need free guidance through the initial appeal stages in order to get to the point where Legal Aid would kick in. The best way of salvaging something of this mess may well be for public lawyers to offer free initial advice (themselves or by donating their time to advice centres) on areas which are relevant to public law, such as social security and housing, whether the individual cases turn out to be public law cases or not, and set it off against the work they can get paid for. It shouldn’t have to be like that though. It’s a massive burden to ask them to take on and every time lawyers meekly accept lower rates of pay and agree to work for free, the Government of the day seems to wonder how much further they can be pushed, while the public via the media just declares “well of course they should work for free. It’s the least these fat cats can do.”

I’ll finish with Liberty’s summary of the wider situation, which hits the nail on the head:

“the true impact of these cuts goes much further than the likely individual injustices which will prevail. The ever-present prospect of legal intervention is the surest way of securing a society where respect for human rights, equality and due process guides the behaviour of our decision-makers. Alongside other assaults on the rule of law such as Secret Courts and worrying judicial review overhaul, legal aid upheaval risks leaving big business, Government and other members of the rich and powerful elite that bit freer to act with impunity”

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We’re All Retro Now

If you accidentally tread on someone’s toes the normal response would be to apologise. Nobody expects you to rush off to buy painkillers and arnica gel. But that’s a mere accident involving two individuals where there’s not likely to be much more damage than a few bruised toes. When the State introduces a scheme of any kind which impacts on the public or a section of it, expectations are rather higher. The State is expected to implement its scheme in accordance with applicable law. Personally, I believe Workfare is wrong in principle and that people should be paid to work. I’ve also yet to see evidence that it actually succeeds in getting people into long term employment but that’s not really the point of this post.

It’s not exactly controversial to suggest that, when making laws and forming schemes, governments should get it right. That’s their job. If they don’t, they can’t expect to find that courts sympathise with the government. If people suffer loss as a result, the government will be expected to compensate those people. Similar (although not identical) rules apply to us all, both in the context of goods and services we provide in our working lives and in the sense that we can personally do things which hurt others. For example, if a lawyer or a doctor is negligent, they’ll be liable. If a driver is responsible for an accident, he’s liable. The “guilty” person will usually be expected to put the injured party into the same state they would have been in but for the actions of the “guilty” person, in so far as that’s possible. This is all a massive oversimplification (arguments over issues like access to justice are perfectly valid but I don’t want to go off piste here) but the bottom line is that every single person and organisation in the UK is subject to its laws and none of us can turn the clock back.

The Court of Appeal ruled that the that the Workfare scheme is procedurally flawed. People suffered as a result of that. Maybe some (possibly many) would have been sanctioned anyway, if the DWP had got it right, but it didn’t. The case opened the door to all of those people. The DWP failed to do its job properly and, like anyone else, it should have paid for its actions in accordance with the law but from day one the DWP was determined not just to remedy the flaws identified by the Court but to ensure that nobody was compensated for the original flaws. Its immediate response was, in essence, “we’re big enough and ugly enough to get away with not paying for our mistakes.” The only way the DWP could outflank the judgement and prevent claims for compensation from people who’d been wrongly sanctioned was to introduce new legislation with retroactive effect. As if by magic that would cure previous procedural errors. Metaphorically speaking it’s like the DWP got a knock on the door from a neighbour:
“Excuse me but your cat just shit on my carpet.”
“No it didn’t.”
“It did. Come look.”…
“That could have been anyone’s cat.”
“But it wasn’t. It was your cat. I saw it”
“Oh. Well that’s easily fixed.”
“So you’ll clean my carpet?”
“No. I’ll do something better.”
“I’ve built a time machine to take us back to last Tuesday.”
“And then there won’t be any cat shit?”
“There will but you won’t be able to prove it was my cat.”

The DWP’s approach to the Workfare judgement makes a mockery of the Court system. The DWP has every right to change the Workfare Scheme so as to ensure that it complies with the law in future but it also claims it has the right to an exit strategy from responsibility for past actions and to avoid the consequences of those actions. One rule for us. One for the Government. Our constitution requires the separation of powers of Judiciary and Parliament. The whole point of that is to ensure that justice can be done when the Government and its agencies deliberately, negligently or even innocently get it wrong. The job of the Courts is to protect us when it needs doing but the DWP’s logic is that it can use a retroactive law in order to make a mockery of the original judgement. Neither statute nor any international convention says that the Government can’t impose retroactive laws by passing them through Parliament in the civil context (criminal law can’t be changed). However there is a fundamental unwritten rule barring retroactive legislation (that might sound a bit lame but it’s part and parcel of the common law system) due to its basic unfairness.

Last year, a retroactive law was introduced to force Barclays to pay £500 million in tax which it had avoided. Now a retroactive law is being introduced to enable the Government to avoid repaying £130 million to people who were wrongly sanctioned under the Workfare scheme. This is one of those times where lawyers’ views may differ from many other people’s. Forcing Barclays hand to ensure it pays its taxes probably appeals to a lot of people. It does to me but only to the extent that I believe Parliament should introduce legislation which closes loopholes. The number of businesses who routinely avoid tax disgusts me but Parliament should identify the methods of avoidance and enact legislation to make that act evasion in future. I don’t sympathise with Barclays, not least because they just paid nearly £40 million in bonuses to Rich Ricci and others but also because the actions it took went against assurances it had made that it wouldn’t avoid tax. That still doesn’t mean I think we should apply retroactive legislation to Barclays and others like it. No matter how much I loathe them, the principle is what matters. Even though corporations and wealthy individuals are playing with a stacked deck, we shouldn’t cherry pick who benefits from the rule of law.

The Government wants to apply retroactive laws to benefits claimants. Of course, this wasn’t just about the Coalition. The vast majority of Labour mps abstained from the vote. I didn’t watch the whole debate but from what I’ve gathered the reasoning appeared to be: we disapprove of Workfare but we approve of sanctions generally and we don’t want to see £130 million being spent and oh, by the way, incidentally, we have no problem with the idea of retroactive legislation. The fact that I don’t agree with Workfare isn’t why I vehemently disagree with this particular piece of legislation. I vehemently disagree because every time a retroactive law is made we chip away at the edifice of the rule of law. Maybe next time another multinational will suffer as a result, maybe some of the poorest in our society, maybe people like me. One of the things which never ceases to amaze me when it comes to civil liberties is how complacent people can be. It’s not just wrong, for example, to detain people without trial, torture, unlawfully search and surveil. It’s a threat to our civil liberties. All of them. All of ours. The same thing can be said (and I would argue with even greater strength in terms of the practical likelihood of abuse) about retroactive laws. Yesterday Barclays, today Workfare, tomorrow who knows? Both Barclays and people wrongly sanctioned under Workfare were subjected to retroactive laws because it’s financially expedient to the Government to sidestep the rule of law. A myriad of other decisions could become financially expedient and they could affect any one of us.

Workfare – a fair judgement?

Reports, tweets and blogs on the Court of Appeal judgement on Workfare are contradictory so I went for a look at the Judgement. The Court of Appeal was asked distinct questions and one of the Judges says:
“I emphasise that this case is not about the social, economic, political or other merits of the Employment, Skills and Enterprise Scheme. Parliament is entitled to authorise the creation and administration of schemes that, in the words of section 17A(1) of the 1995 Act, are designed to assist the unemployed to obtain employment, and provided that the schemes are appropriate for that purpose, it is not easy to see what objection there could be to them. Parliament is equally entitled to encourage participation in such schemes by imposing sanctions, in terms of loss of jobseekers’ allowance, on those who without good cause refuse to participate in a suitable scheme. This appeal is solely about the lawfulness of the Regulations made by the Secretary of State in purported pursuance of the powers granted by the 1995 Act as amended.”

The key question for the Court of Appeal was a technical one, whether the Workfare Scheme met the statutory requirement (in the Jobseekers Act 1995)
for the Regulations to make provision for schemes of a prescribed description
The Court of Appeal decided that too much was left to be dealt with outside the Regulations. Their decision was based on the specific wording contained in the JSA.

Caith Reilly and Jamie Wilson had already won their individual cases before the matter was appealed up to the Court of Appeal to look at the technical question. In Jamie Wilson’s case he wasn’t required to participate in the Workfare scheme because he’d never been given proper notice of it. In Caith Reilly’s case, she was wrongly told that participation was mandatory (which was wrong in her circumstances).

The Court wasn’t asked to decide whether the JSA, Regulations and Scheme breach the European Convention of Human Rights but referred to a European Court of Human Rights judgement, quoting it:-
“the court held that there could be a breach “if the service imposed a burden which was so excessive or disproportionate to the advantages…that the service could not be treated as having been voluntarily accepted beforehand.”
(in this context, “service” meant work) and giving a reminder that:-
“Provided the arrangements made serve the statutory purpose stated in section 17A, they need not infringe article 4.”
So, the Court actually said there’s nothing inherently wrong in making people work without pay on Workfare. The burden of doing so would have to be excessive or out of proportion to the benefits of doing so.

So, there you go. The Court of Appeal did its job. Looking at it from a philosophical perspective, this isn’t a win for people opposed to Workfare. It’s an embarassing rap over the knuckles for the DWP for its failure to implement it properly. Going back to the drawing board to comply with these requirements will require the DWP to comply strictly with section 17A of the JSA by preparing new Regulations (amending the Act would be another possibility). It could help people who’ve been sanctioned previously but it won’t stop the Scheme continuing.

My lawyer head believes that the Court made the right decision for the right reason. My personal philosophy is a different matter. I believe that people should be paid for a days work. By all means, offer voluntary placements and allow jobseekers like Caith Reilly to do relevant unpaid work but don’t force people to do it. If the Government wants to incentivise working, telling people they aren’t even worth minimum wage seems like a shabby way to go about it. 

I believe training and education should be a greater priority than clocking in. I don’t mean everyone should have a degree, just that schemes should serve a real purpose. Even accepting the argument that people get out of the habit of working, telling people to clock in for free seems self-defeating. I read a fair bit about returning to work from maternity leave when I returned from sick leave and it’s pretty well acknowledged that confidence is a major factor on returning to work. How does forcing people to work without pay help confidence?

Finally, I believe the Government shouldn’t tell us the private sector is picking up the slack and hiring whilst giving free workers to large businesses. Subsidies to encourage workplace training are one thing but why do shops need free shelf stackers? What good does that do “UK plc”? A steady stream of free workers doesn’t provide an incentive to fill a role with a paid worker when unskilled work is involved.