Legal aid and arbitrary powerPublished on openDemocracy (https://www.opendemocracy.net)

Legal aid and arbitrary power

Legal aid and arbitrary power Deborah Padfield [1] 27 March 2012 Today marks the final reading of the legal aid bill in the Lords. If - as seems likely - the bill goesthrough, 'ordinary people' in Britain will be shocked to discover how thin is their access to law whenthings 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.

There’s a perverse pleasure in working with people on their benefit claims. The system is soover-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' muddleis its middle name. Being on benefits, save for the tiny minority of skilled frauds who enjoy workingthe 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 hername), 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 workedwith her on the appeal. Now she’d been granted ESA for 18 months. A whole year and a half ofknowing where her money was coming from without the need of further assessments, able to carryon fighting for recovery unshadowed by yet more insecurity. She has post-traumatic stress disorderas 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 thepeople I see, the right decision (legally right, just, fair, on the basis of their problems) is a matter ofmanageable life or nightmare. Where life is dominated by fear, pain, fatigue, self-hatred, moodswings or the warring realities of psychotic voices, being told to look for work is a malign joke. Peoplegenerally long for employment – for work more companionable, respected and remunerative thantheir daily struggle with disability. Maybe they can manage some volunteer or even very part-timework, moving slowly towards recovery, building strength over time. I’ve seen people return toemployment 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 onESA after appeal seems to be some 9% higher than the previous quarter, appeals having a 38%success rate. [DWP Statistical Release, Jan 2012 [2]]

Those figures don’t show the people whose decisions were overturned by JobCentre Plus after arequest 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 whatthe 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 legalaid for welfare benefits, among other areas, is that these are simple matters which claimants canargue alone. Specialist legal advice is not needed.

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Legal aid and arbitrary powerPublished on openDemocracy (https://www.opendemocracy.net)

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

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

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

The Upper Tribunal agreed to set aside the first-Tier decision, made in Mike’s absence as he’dducked going to the hearing alone. Fat chance of him being able to get there. It was plain from thepapers that a fair decision depended on questioning him. At the further hearing, with Mike presentwith his support worker and backed by evidence not just of his diagnosis but of his functionaldisabilities, 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 awoman with fibromyalgia, a disaster area for disability benefit assessments. Decision-makersdiscounted her problems under the mental health ‘descriptors’ on the grounds that their cause wasphysical – fatigue. Bring on the case law which says that the presence of a specific mental disorder isnot a prerequisite for considering the mental health descriptors (CE 2323 2010). Like many, thisdecision 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 losetheir advisers like leaves in autumn. Other sources of funding are thin and few volunteers, backboneof 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 appealdecisions about overpayments that weren’t, underpayments denied and disputed entitlementswhose ‘truth’ lies deep in the windings of welfare benefit law. If Mr Djanogly, under-Secretary ofState at the Ministry of Justice, believes that benefits are common sense, or that Job Centre Pluscontact centres are competent to advise, then truly it’s now ‘high time to awake out of sleep’. Butmaybe 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, justifiedand unjustified. Such questions make the bonfire of legal aid even more desperately important thanthe benefit cuts which leave poor people poorer. Without legal advice, a legal system is a soundinggong or clanging cymbal: empty. Without a functioning legal system, democracy is dead, fordemocracy 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; ifthese 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 threatensour most basic liberties. Country or region: UK Topics: Democracy and government $(document).ready(function () { $("div#contentgrid").removeClass('grid-8');$("div#contentgrid").addClass('grid-6'); }); About the author

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Legal aid and arbitrary powerPublished on openDemocracy (https://www.opendemocracy.net)

Deborah Padfield has been a Citizens Advice benefits adviser, trainer and supervisor in Cambridge,Peterborough and north Essex, where she still works. In the past she lived and worked in London'sEast End. She has considerable experience of mental illness and is on the steering committee of TheCambridge Commons [3].

Subjects

UK [4]

Democracy and government [5]

Access to justice [6]

Shine A Light [7]

Governing poverty: risking rights? [8]

50.50 Voices for Change [9]

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