Are welfare benefits exempt from bank charges under section 187(1) of the Social Security Administration Act 1992?

Desmond Rutledge considers whether the protection conferred on welfare benefits under Social Security legislation continues once those benefits have been paid into a current bank account.

Are welfare benefits protected from recovery of a debt owed to a bank?

Welfare benefits are paid to cover the recipient’s essential living expenses and, where applicable, to contribute to their housing costs (see Burnip v Birmingham City Council & Anor [2012] EWCA Civ 629, at [32]-[33], [50] and R (MM & Ors v Secretary of State for the Home Department [2013] EWHC 1900 (Admin) at [48]).  Where, however, welfare benefits are paid into the claimant’s current account, the bank or building society can use the money in that account to make repayments towards bank loans or credit cards, and where the  account goes into debit, on interest payments and bank charges, even if this results in the claimant having insufficient funds to cover essential payments.  Continue reading

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Why Scotland’s independence would be good for migrants

There are strong socialist arguments against Scottish independence but “no borders” isn’t one of them, writes Taimour Lay.

Here lies our land: every airt
Beneath swift clouds, glad glints of sun,
Belonging to none but itself.
We are mere transients, who sing
Its westlin’ winds and fernie braes,
Northern lights and siller tides,
Small folk playing our part.
‘Come all ye’, the country says
You win me, who take me most to heart.

Kathleen Jamie

In a recent thought-provoking post against Scottish independence, a Chambers colleague argued that “we can all hope that a new Hadrian’s Wall will not be built by politicians present or future, but any strengthening of the current border will inevitably discourage free movement across it and divides rather than unites.” In doing so, he warned against a narrative which ignores the dangers of nationalism and a “new hard border”.

But an independent state of Scotland is, though it might appear paradoxical, very likely to lead to more, not less, free movement; and any fear on the left of strengthened borders in the wake of independence is misplaced.

While a new state would be born following the referendum on 18 September, and any such sovereign and democratic polity would inevitably define the reaches of its territory (on and offshore), the reality is that an independent Scotland would raise no higher bar to migrants from outside – indeed, as a new country committed to welcoming migrants and operating a fairer and freer border, it could undermine the toxic politics of “immigration” in the rUK (residue/rest of the UK) and is likely to contribute to higher net migration across, and into, our “islands” as a whole.

First, as regards free movement within the current UK, the white paper on Independence makes clear that “there are no circumstances in which the Scottish Government would countenance any measure being taken that jeopardised the ability of citizens across the rest of the UK and Ireland to move freely across our borders as they are presently able to do. It is for this reason that following independence Scotland will remain part of the Common Travel Area (CTA), which dates back to the 1920s.” In short, the new state of Scotland will not be building a wall to run the length of Hadrian’s.

Secondly, Scotland will almost certainly continue to be a member of the European Union and therefore European citizens with existing (qualified) free movement rights will be as free as today to live and work here. Again, Scottish independence is likely to increase the freedom of that movement. It remains the express policy of Westminster to add more and more qualifications to European free movement, most recently by undermining social welfare protections and family rights. The Immigration (European Economic Area) Regulations 2006 move ever further away from genuine compatibility with the UK’s Treaty obligations.

Scotland is likely to pay more than lip service to Treaty rights and the principle of European citizenship. (While a commitment to the Common Travel Area is likely to mean Scotland, like the rUK and Ireland, opts out of the Schengen Agreement, under which there is passport-free travel across 26 European countries, this would preserve the status quo within the CTA rather than raise a new border post.)

Finally, Scotland and extra-European immigration. There is a growing political consensus in Scotland strikingly at odds with that in rUK; namely, that the country needs foreign students and economic migrants from outside Europe to develop the economy and fund future pension liabilities; and at the same time takes seriously its moral obligation to welcome refugees and those seeking international protection. But, trapped within the borders of the UK, progressive forces in Scotland have no power to loosen and remove the existing border restrictions imposed by London.

Post-independence it is perfectly plausible that at a time when the UK will continue to put up its barricades (and may even leave the EU), and maintain its attempt to limit refugee numbers, our immediate neighbour to the north will be operating a freer and more humane immigration system to its own benefit. It may even lead by political example, taking the sting out of Tory and UKIP scaremongering.

True it is that Scotland, as a new country, will have borders and a system of immigration control. But the political endgame of “no borders”, a position shared by many at the radical bar, should not blind us to other competing values and how borders can be minimised and ameliorated in the medium term. Nor can it bind (Scottish) citizens into a contigent and dysfunctional construct (“the UK”) in perpetuity. By voting “yes”, Scots will not be creating or strengthening borders in any real sense. But they will be making a democratic choice to self-determine their own affairs (though the hard political work of challenging class power, land ownership and concentration of wealth will remain). There are compelling socialist/internationalist arguments against Scottish independence but “no borders” isn’t one of them.

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What is the future for UK human rights?

This article was first published on Lexis®PSL Corporate Crime on 5 August 2014. Click for a free trial of Lexis®PSL.

Human Rights analysis: What does the future hold for human rights in the UK? Stephanie Harrison QC at Garden Court Chambers warns repealing the Human Rights Act 1998 (HRA 1998) would be a seriously retrograde step, that would reverberate around the world.

What does the current legal framework for human rights look like in the UK?

The legal framework for protecting fundamental human rights contained in HRA 1998 achieved an unusual balance between incorporating international human rights standards with existing domestic constitutional arrangements. While requiring judges in HRA 1998, s 3 to take account of the European Convention on Human Rights (ECHR) and its jurisprudence in interpreting domestic law as far as possible, it also preserved Parliamentary sovereignty in respect of legislation that was incompatible with the ECHR. Continue reading

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The gaps in the welfare ‘safety net’ and the scope for using judicial review

Desmond Rutledge considers the use of judicial review as a remedy of last resort in welfare benefits cases where the claimant is in financial crisis


The growth of gaps in the welfare safety net – the political backdrop

Since coming into office in May 2010, the Coalition Government has introduced a series of radical and far-reaching changes to the welfare benefits system.  The programme of ‘welfare reform’ is part of a broad-based strategy that aims to address perceived problems in the welfare benefits system, such as high expenditure and poor work incentives.  But the Government maintains that the reforms will not penalise those ‘in genuine need’ (DWP reform: DWP’s welfare reform agenda explained, April 2014, p 3).  Continue reading

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How housing practitioners can use public law arguments to resolve housing benefit issues where a tenant’s home is under threat

Desmond Rutledge explains how housing practitioners can use public law arguments to resolve housing benefit issues where a tenant’s home is under threat due to possession proceedings.

In an article published in this month’s Legal Action Group Magazine (July/August p 24), Desmond Rutledge considers the circumstances in which housing practitioners can use judicial review as a ‘remedy of last resort’ in order to resolve outstanding housing benefit issues where these are the sole cause of the rent arrears which have led to the landlord taking action to repossess the claimant’s home. Continue reading

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What legal aid is still available for work undertaken on welfare benefits post-LASPO?

Desmond Rutledge examines the availability of public funding for welfare benefits cases in the Upper Tribunal and by way of judicial review.

The proposal to remove legal aid for welfare benefits cases

In November 2010, the Government published Proposals for the Reform of Legal Aid in England and Wales (Cm 7967), in which it announced that  all work done under the category of welfare benefits would be removed from the scope of civil legal aid.  The stated aim was to ensure that legal aid was targeted for those who need it most.  Work undertaken in relation to welfare benefits was deemed to be of low importance because it is concerned with financial issues rather than with issues of “safety or liberty”Continue reading

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Player Contracts: Football transfers v European Union law: analysis

FIFPro’s recent challenge to the international football transfer system has highlighted that there are a number of issues with the compatibility of the current system with European Law. Ifeanyi Odogwu, a Barrister with Garden Court Chambers, examines FIFPro’s challenge in the light of previous challenges to the international transfer system based on its incompatibility with EU law, and assesses some of the issues that need to be considered.

With the January transfer window closed, the latest criticism of the football transfer system is timely and poses difficult questions for the sport’s governing bodies in relation to compatibility with EU law. FIFPro, the international players’ union, recently released a scathing statement on football transfer policy, announcing a series of challenges aimed at reforming the global transfer system and ‘the current economic make-up’ of the professional game1. Continue reading

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