Legal Aid, Sentencing and Punishment of Offenders Bill

Baroness Doocey Excerpts

Monday 16th January 2012 Lords Chamber

Moved by

[Baroness Doocey]

32: Schedule 1, page 116, line 1, at end insert—
“Social welfareCivil legal services provided in relation to a benefit, allowance, payment, credit or pension under—
(a) the Social Security Contributions and Benefits Act 1992,(b) the Jobseekers Act 1995,(c) the State Pension Credit Act 2002,(d) the Tax Credits Act 2002,(e) the Welfare Reform Act 2007,(f) the Welfare Reform Act 2011, or(g) any other enactment relating to social security.”

[Baroness Doocey]

My Lords, I should like also to speak to Amendments 35 and 89. These amendments relate to the ability of claimants, the majority of whom are disabled, to appeal against decisions on their entitlement to welfare benefits. The intention behind these amendments is to protect some of the most vulnerable people in our society. The Bill as it stands would remove social welfare cases from the scope of legal aid, which would have an adverse and disproportionate impact on disabled people in particular, and would leave them unable effectively to challenge decisions when they are let down by the system.

Legal aid is currently available to assist individuals with a range of welfare benefit issues, from navigating complex benefit administration to reviewing and appealing against official decisions. When appealing against such decisions, advice is available to clients before appeal and tribunal, but legal aid does not cover legal representation—and there is no suggestion that it should. A number of noble Lords have already made the point that the welfare benefits system is complex, and more than half the welfare benefit assistance that is funded through legal aid relates to disabled people. However, despite the best efforts of all involved in a claimant’s initial application, mistakes are frequently made, and these are well documented.

The need for such legal aid is best demonstrated by the fact that nearly 40 per cent of all appeals against work capability assessment decisions are upheld. In addition, between October 2008 and February 2010—a period of just 17 months—60 per cent of disabled people who appealed were eventually found to qualify for employment and support allowance, even though they had initially been assessed as having no factors that would affect their ability to work. The proposals in the Bill would, every year, deny specialist legal advice for complex welfare problems to more than 130,000 people, of whom nearly 80,000 are disabled. Without legal aid, the ability of people to appeal against a decision would be undermined because the rules for benefit eligibility are extremely difficult to understand.

To give just one example, the complexity of the extensive legal precedents determining the criteria for being classed as virtually unable to walk make professional legal advice vital for anyone even thinking of appealing against a welfare benefit decision. We all recognise the need to make economies but the Government’s own impact assessment puts the spending on legal aid for welfare benefits at just £25 million, compared to a total legal aid budget of £2 billion. This is a relatively minor saving but it would have a major effect on large numbers of vulnerable people who need help with appealing when mistakes have been made about their entitlement to benefits. I also argue that failure to provide timely legal advice to assist disabled people who are put on the wrong benefit is a false economy that will almost certainly result in additional demands being placed on services such as the NHS, rather than delivering the savings that the Government are hoping for.

To make matters worse, the Bill is being considered at the same time that the Government are undertaking a dramatic overhaul of the welfare benefits system. With a reform on this scale, there will be a new and unfamiliar set of complexities to navigate through for both claimants and officials. During the transition, there is bound to be an increase in the number of inaccurate benefit decisions made and a consequent need for legal advice to challenge these.

I share the Government’s desire to reduce the number of appeals against decisions, but this reduction must not happen because the loss of legal aid prevents disabled people from challenging decisions. I therefore commend these amendments to the Committee as a means of securing justice for some of the most vulnerable people in our society whose needs are constantly overlooked. I beg to move.

[Lord Wigley]

My Lords, I strongly support the amendments so ably moved and spoken to by the noble Baroness, Lady Doocey. I recall her impressive speech on these matters at Second Reading. Some of us sat through 17 sessions of the Welfare Reform Bill in Committee and, in session after session, we came across the potential loss of important and valuable benefits on which many vulnerable disabled people depend.

Some of the changes will not be easily understood, and some will be seen as depriving this cohort of people of essential resources that would at least compensate for their disability or enable them to live with it. When they lose or are in danger of losing such benefits there will clearly be a strong feeling that they have been badly treated. If there is any dubiety in law with regard to the way in which they are losing, they will want to challenge that.

I put it to noble Lords that to introduce these two pieces of legislation simultaneously—tonight we are dealing with the legal aid Bill; tomorrow we are back to the Welfare Reform Bill on Report; and on Wednesday we are back to legal aid—given the combined effect that they may have for disabled people, is absolutely wrong. There should at the very least be a facility for those who may be deprived of benefits which are so important to them to challenge that in law during the opening period of the implementation of the Welfare Reform Bill. If, in due course, when things settle down, there is a need to change things, all well and good, but I remind noble Lords that the degree of benefit fraud in the context of disability is minimal. Therefore, it is a question of depriving people of resources to which they have been entitled, the loss of which will make a significant difference to their lives.

The Government should seriously look again at the cost implied by the amendment and the implications of the legislation to find a way in which disabled people and other vulnerable people affected by the Bill can at least have the basic right to challenge it in court.

--- Later in debate ---

[Lord McNally]

That is not my best point. The best point is that we are having, supposedly, a national debate about welfare dependency and welfare reform. It may be a bit unsettling that a number of reforms are taking place at the same time, but my understanding is that the welfare reforms before this House are attempting to simplify a much overcomplicated process and that that had the broad support of the Opposition. I do not think we are going to win this argument, some of which we will return to.

Amendment 35 seeks to bring into scope legal aid for advice and assistance for appeals to the First-tier Social Entitlement Chamber in respect of welfare benefits that are payable under social security legislation as a result of disability. The intention of the amendment appears to be for legal help and representation to be provided for welfare benefit appeals in the First-tier Tribunal for those with disabilities. Currently, legal aid is available for legal advice only in relation to decisions on welfare benefits in the First-tier Tribunal. Legally aided representation is not available for tribunal hearings because they are designed, as has been said, to be user-friendly without the need for legal representation. Therefore, we believe that this amendment would increase the cost of legal aid by expanding it into areas where it is not currently available.

We recognise that this amendment is concerned about the impact on those with disabilities who are appealing to the tribunal. While we recognise that those with disabilities may face additional obstacles, the tribunal is a relatively informal venue. The tribunal itself will comprise a medical practitioner and a disability expert as well as a tribunal judge when considering disability living allowance appeals. Given this and the need to prioritise funding, we have decided to remove legal advice for welfare benefits from the scope of the legal aid scheme. I hope that my noble friend will withdraw her amendment.

[Baroness Doocey]

My Lords, I am grateful to all noble Lords for their support on these amendments.

I have listened very carefully to what the Minister has said and I cannot pretend I am not disappointed by the response. There is no doubt that we need to get a higher proportion of benefit decisions right the first time round but I have not seen anything to convince me that this is going to happen any time soon.

Huge numbers of mistakes are made in decisions on benefit, and these have catastrophic effects, not just on the person trying to claim the benefit, but on their entire family.

I will give you one example. Somebody that I have known for 30 years has incredibly complex problems with her back following an accident. She had worked all her life, and was forced to claim benefit. She is so badly damaged, having had multiple operations, that she is incapable of standing for more than three minutes at a time. She spends the majority of her life lying down to take the pressure off her back, and is on incredible amounts of medication. Initially she was assessed as having no problems whatever, and that she could work. While she is a highly articulate person, she is terrified of authority, and so without being pushed by a number of us, and having recourse to legal aid, because she had no money at all, she could never have appealed that decision, which was clearly absolutely wrong.

I therefore really worry about what is going to happen if this goes through. I really hope that the Minister will reflect again and consider bringing back some hope at Report stage. Meanwhile, I beg leave to withdraw my amendment.

Amendment 32 withdrawn.