Welfare reform: the new postcode lottery

After domestic violence cases, the cuts to legal aid for welfare benefits advice proved to the most divisive issue in the course of the Legal Aid Sentencing and Punishment of Offenders (LASPO) Bill’s voyage through the parliamentary process. Campaigners and parliamentarians frequently made the link between the implementation of the Welfare Reform Act and the need for advice and representation. Baroness Grey-Thompson, the high profile former paralympic athlete and a cross bench peer said that the proposals in the bill acted as a “double whammy” for disabled people who would find themselves without welfare benefits and unable to challenge decisions.

According to Citizens Advice CEO Gillian Guy, the timing of the legal aid cuts due to be implemented next April could not be worse. “Welfare reforms already in place – like the switch from incapacity benefit to ESA – have led to a huge surge in the numbers of people needing help and advice,” she says. “In the last three months alone we saw over 100,000 enquiries about ESA – a rise of a staggering 76 per cent – and over 21,000 of these related to appeals. That’s just a small indication of the increased need for advice and support we expect to see when universal credit is introduced. It’s no exaggeration to say that the success of welfare reform depends in part on an adequately funded independent advice sector that can both support individuals through the changes and act as an early warning system on where things are going wrong.”

The Citizens Advice Bureau and other advice centres were brought into the legal aid system under the last government. This was after a successful pilot scheme was run by the then Legal Aid Board, while Lord MacKay was Lord Chancellor in John Major’s Conservative government. In total around 300 Not for Profit (NfP) organisations contract with the Legal Services Commission to provide early advice in social welfare law, mostly in benefits cases. Representation before first tier tribunals is not funded by legal aid, but advisors frequently assist clients by advising on this complex area of law and drafting grounds of appeal.

Essential advice

Over the last 40 years welfare rights services provided directly by local government or funded mainly by councils in the NfP sector grew in parallel with the legal aid system. The outlook for these though looks equally pessimistic as both councils and NfP advice centres are seeing other sources of government and charitable support drying-up. For example Manchester City Council had one of the largest advice services in England and Wales before cut backs last year reduced it from 112 to 29 staff.

The figures speak for themselves on the need for advice on benefits. 418,000 tribunal claims were received in welfare benefits cases by the tribunal service last year (see appendix 6 of ‘Austerity Justice’) nearly half of which were for Employment and Support Allowance, a benefit for people with disabilities, which will be subsumed into the Universal Credit system next year. Also, welfare benefits remains the largest source of enquiries for the Citizens Advice Bureau with over 2m annually (see appendix 1 of Austerity Justice). The large number of problems with benefits led to a move to water down the government’s proposal to cut 100 per cent of legal aid for welfare rights, by introducing legal aid to assist people with complex benefits cases.

Secondary legislation

Although small in size, the rebellion of ten Lib Dem MPs over the LASPO Bill last year was the public face of a considerable effort behind the scenes to wring a concession from the government on complex benefits cases. This culminated in the government’s concession on the issue as LASPO was in the final stages of its consideration by parliament in April this year. Unfortunately, for MPs such as Tom Brake, Chair of the influential Liberal Democrat Home Affairs, Justice and Equalities Committee, who brokered the deal they seemed to have been sold a dummy over the compromise they thought they had reached.

In a written ministerial statement issued in September 2012 from a new minister at the MoJ, Jeremy Wright MP, the government explains that it has not been possible to establish the system of independent verification which it had agreed would identify points of law in cases before the first tier tribunal to qualify for legal aid. It has decided to permit legal aid only in cases in which the tribunal itself identifies an error in its own decision.

“We believe the proposed scheme will cover very few cases and in no-way near satisfies what was agreed with MPs. Next year will see massive upheaval in the benefits system due to the introduction of universal credit. Claimants will need expert help particularly with the complex cases these changes are likely to bring in their wake,” says Paul Treloar, Policy Director at London Advice services Alliance.

The row over the cutting of legal aid for benefits cases could be set to be reignited ?this week, as a vote might be triggered on secondary legislation concerning benefits advice. LAG understands that peers, in a rarely used procedure, are contemplating challenging the government on the issue of complex benefits cases when the secondary legislation to implement the new system is brought before the Lords. For many clients if the government do not re-think their stance on legal aid in these cases, whether they get help or not will boil down to a postcode lottery determined by if they are lucky enough to live in an area in which a local council or charitable foundation is still willing to support benefits advice services.