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This week: Commons considers Lords amendments to Legal Aid Bill

On Tuesday 17 April 2012, the House of Commons will consider the Lords amendments to the Legal Aid, Sentencing and Punishment of Offenders Bill.

Last month, the Government suffered a number of defeats at the hands of the Lords, largely about the areas of law which would continue to receive funding under the bill.

Notably, the Liberal Democrat Lady Doocey tabled an amendment which would retain legal aid for advice on appeals against welfare benefit decisions at the first-tier tribunal.

The amendment was agreed by 237 votes to 198. A response circulated in advance of Tuesday’s debate suggests that the Justice Secretary Ken Clarke will move an amendment to retain legal aid for advice on appeals made to the upper tribunal or higher courts.

What does this mean exactly and what difference would it make to those seeking advice in relation to benefits matters?

As a welfare benefits advisor, I assisted around 700 clients during 2011, providing either initial advice, or assisting with ongoing casework.

The cases involved entitlement to benefits such as Employment and Support Allowance, Disability Living Allowance, Housing Benefit, Child Benefit, Tax Credits and even help with funeral costs via the Social Fund. And yet, of those 700 clients, I can recall assisting only two with appeals to the upper tribunal.

To understand why, one must first understand the relationship between the first-tier and the upper tribunals.

When an appeal against a welfare benefits decision is made, it will first go to the benefit provider that made the decision. If the decision cannot be revised, the benefit provider should pass the appeal to the first-tier tribunal. At present, a first tier tribunal hearing can take from six to 12 months to be heard simply due to the staggering backlog of appeals which the tribunal service currently faces.

If the first-tier tribunal does not uphold the appeal, the appellant has a right of appeal to the upper tribunal. To appeal, the appellant must first request the tribunal’s 'statement of reasons'. This often takes months to be drafted and issued to the appellant.

Once received, the appellant will have one month to apply for permission to appeal to the upper tribunal. The appellant must be able to identify an 'error in law', e.g. the first-tier panel misinterpreted the wording of the legislation, failed to consider relevant case law or did not back up a finding of fact with sufficient evidence. It is too late, when appealing to the upper tribunal, to raise any new dispute regarding the facts of the case or present any new evidence; the fact finding has been done and all the upper tribunal can look at is whether the way in which the first-tier tribunal made their decision was correct.

It is clear that upper tribunal appeals do involve subtle and technical legal issues, and it is these appeals which help test, define and refine the law itself. For both these reasons, funding for specialist legal advice at this stage is essential, and therefore welcomed.

However, it should also be clear that the stage at which the vast majority of appellants need assistance is in their appeal at the first tier tribunal, and even before that while the appeal is still being dealt with by the benefit provider. In most instances, by the time the option of appealing to the upper tribunal becomes available, the horse will already have 'bolted'.

If, for example, a case relates to the disallowance of Housing Benefit and an appellant is facing eviction, what’s needed is a fast resolution. Clients need advice on what evidence must be gathered and what arguments must be put forward for the decision to be changed by the local authority or the first tier tribunal.

If they only get advice after first tier, it will almost always be too late, as it is unlikely that the relevant evidence was put before the first tier panel and there will be no further opportunity for findings of fact to be made. Ideally, these cases should be resolved with the local authority within weeks or, at worst, at a first tier tribunal hearing within months; any longer and the appellant will have already been evicted, the upper tribunal not even having set eyes on the paperwork.

In short, offering funding for advice at this late stage alone is the equivalent of throwing a cup of water on a forest fire; it will do nothing to help the vast majority of vulnerable and financially impoverished people remedy their day-to-day benefits issues quickly and effectively.

If specialist advisors can only get involved with a case as late on as the upper tribunal, they will stand very little chance of being able to achieve a successful outcome - it's like only allowing doctors to examine a patient for the first time when they have already reached intensive care.

And the need for specialist advice on appeals has never been greater.

The Welfare Reform Act introduces radical change to the benefits regime, increasing the likelihood that people will not understand their entitlements, and incorrect decisions will be made. Retaining legal aid for reviews and first-tier tribunal appeals would protect 100,000 people, many of whom will be disabled.

They need an amendment to protect legal aid at this level as well as in the higher courts. The amendment Mr Clarke is due to introduce will only benefit the small minority - those seeking advice who are fortunate enough to have steady flow of income, a roof over their head and plenty of time on their hands.

It is no alternative to that tabled by Lady Doocey. It is not the amendment which so many campaigners have been urging and it is not the amendment the public so desperately need.

What you can do

Please write to your MP today asking them to back the Lords’ amendments to the Bill on 17 April, including Baroness Doocey’s amendment about benefit appeals in the first-tier tribunal. A quick link to a letter to your MP is here. This is the last day to save legal aid so please act now.

Tom Heginbotham is a member of Young Legal Aid Lawyers

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