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”. Nor was public funding deemed necessary for benefit appeals as claimants could present their own cases without assistance, given the “inquisitorial and user-friendly nature of tribunals” (paras 4.216-219). During the debate in the House of Commons, Kenneth Clarke, the Lord Chancellor and Secretary of State for Justice at the time, gave his own take on why legal aid was not required in welfare benefits cases:
“Every Member sitting in the Chamber is used to giving advice on social security benefits, because we do it all the time, and there are other voluntary bodies that give advice, but we do not get legal aid. I suspect that in an ordinary case, where there is no issue of law and it is a matter of fact, because of the huge complexity of social security regulations, the advice given by MPs and some members of their staff can be superior to that which is available from a large number of general family solicitors, but those solicitors get legal aid. No one else gets legal aid. Legal aid should be for those cases where legal advice and expertise is required, and it should be financed by the taxpayer on legitimate grounds.” (Hansard; 17 April 2012: Column 224).
The concession to fund appeals on a point of law
At the eleventh hour, the Government conceded that “when the whole case turned on a point of law, then the applicant himself or herself should not be expected to represent themselves without legal assistance” (Hansard, 17 Apr 2012: Column 226) and introduced its own amendment to the Bill. Consequently, while paragraph 15 of Part 2 of Schedule 1 of the Legal Aid, Sentencing and Punishment of Offenders Act 2012 (LASPO) contains a general exclusion of civil aid legal services in relation to welfare benefits, there is an exemption under paragraph 8 of Schedule 1, Part 1 LASPO which allows civil aid legal services for welfare benefit appeals on a point of law in the Upper Tribunal, the Court of Appeal or Supreme Court. This was later extended to cover council tax reduction scheme appeals on a point of law in the High Court and the Court of Appeal pursuant to SI: 2013/748.
NB: There is also an exception for cases which involve a contravention of the Equality Act 2010, which includes disability discrimination, especially a failure to make reasonable adjustments: LASPO Schedule 1, Part 1, paragraph 43(1) and (2)(a).
As a result of the concession appeals on a point of law, the Legal Aid Agency tendered a welfare benefits contract to cover the work. The contract was awarded to the Law Centres Network on 1 November 2013 for the procurement areas: London and the South East of England and the Midlands and East of England. A further contract was awarded to a consortium of law centres, advice agencies and solicitors on 1 February 2014 for the procurement areas North and the South West and Wales. For further information on the two contracts see the MOJ website.
NB: In 2012-13, the Upper Tribunal received some 1,700 social security appeals (equivalent to about 0.5 per cent of the First-tier Tribunal’s decisions): Source: Senior President of Tribunals – Annual Report 2014, p 39.
In order to challenge a decision of a First-tier Tribunal (FtT) the appellant needs to identify an error of law in the FtT’s decision and then request permission to appeal to the Upper Tribunal (UT). The process of appealing on a point of law to the UT has two stages, but, for the reasons set out below, the legal aid contract only covers the second stage.
Stage One: In order to appeal against a FtT’s decision to the UT on a point of law, the appellant must request a written statement of reasons of the FtT’s decision pursuant to rule 34 of the Tribunal Procedure (First-tier Tribunal) (Social Entitlement Chamber) Rules 2008, SI 2008/2685. Once this has been obtained, the appellant needs to identify an error of law in the FtT’s decision and request permission to appeal to the UT from the FtT. Under rule 38(6) the request must:
“(a) identify the decision of the Tribunal to which it relates;
(b) identify the alleged error or errors of law in the decision; and
(c) state the result the party making the application is seeking.”
Notwithstanding the Government’s concession that someone cannot be expected to pursue a welfare benefits case which turns solely on a point of law without legal assistance, legal aid is not available to request permission to appeal under rule 38. This is the effect of regulation 2 of the Civil Legal Aid (Preliminary Proceedings) Regulations 2013, SI: 2013/265. Stage one of the appeals process ends when the FtT issues a determination either granting or refusing permission to appeal (r.39).
Stage Two: Under rule 21 of the Tribunal Procedure (Upper Tribunal) Rules 2008, SI 2008/2698, the appellant can apply to the UT for permission to appeal if they have already requested permission to appeal to the FtT. The application to the UT must state the grounds on which the appellant relies. If permission to appeal is granted (by either the FtT or UT), then the respondent (e.g. the Secretary of State or relevant local authority) will be directed to provide a response that will normally contain detailed grounds contesting or supporting the appellant’s appeal (r.24). The appellant will then have an opportunity to provide a reply (r.25). The UT will decide the appeal on the papers, though the UT can decide to hold an oral hearing (r.34). Finally, the UT will issue a decision which finally disposes of all issues in the proceedings (r.40).
The absence of any legal aid at Stage One of an appeal to a UT on a point of law represents a major flaw in the current scheme as it is simply unrealistic to expect an appellant to draft an appeal on a point of law without any assistance. One option would be to provide appellants acting as ‘litigants in person’ with a template letter of appeal and then provide detailed grounds at Stage Two, when funding becomes available. But this is asking a lot of appellants acting on their own. Moreover, the use of a generic letter of appeal might be in breach of the requirement to identify an error of law under rule 38(6).
Advocacy before the Upper Tribunal – exceptional funding
Advocacy before the UT remains out of scope for welfare benefits (unless the UT is exercising its judicial review functions under section 15 of the Tribunals, Courts and Enforcement Act 2007). If the UT directs that there should be an oral hearing of the appeal, then it may be possible to apply for exceptional funding for representation on the basis that the case comes under section 10 of LASPO and Part 8 of the Civil Legal Aid (Procedure) Regulations 2012: SI 2012/3098. This provides that funding may be granted on a case-by-case basis where the failure to provide legal aid would be a breach of the individual’s rights under the European Convention on Human Rights (ECHR) or the rights of the individual to the provision of legal services that are enforceable European Union rights. The Lord Chancellor’s Exceptional Funding Guidance (Non-Inquests) makes it clear that in determining whether Article 6 ECHR would be breached, it has to be shown that the failure to grant funding means that bringing the case would be “practically impossible or lead to an obvious unfairness in proceedings” (para 63). But Ministry of Justice figures show that from 1 April 2013 to 31 December 2013, of the 1,083 applications determined, funding was granted in only 35 cases (3% of cases). This indicates that the criteria are being applied in an overly restrictive manner and, in the case of welfare benefits, all 11 applications were refused: Exceptional Case Funding Statistics – April 2013 to March 2014. The absence of any funding for representation at oral hearings is another shortcoming in the current scheme as it is difficult to see how an appellant can be expected to participate in the legal debate on the finer points of social security law at such a hearing without representation.
Refusal of permission by the Upper Tribunal – the Cart test
In cases where the Upper Tribunal (UT) refuses the application for permission, the appellant will not be able to appeal the refusal and the case will usually be at an end. The UT has no jurisdiction to review its decision to refuse permission. The only remedy is by way of judicial review: Samuda v Secretary of State for Work and Pensions  EWCA Civ 1. But a judicial review in these circumstances is subject to the restrictions laid down in R (Cart) v The Upper Tribunal and Ors  UKSC 28. The application is to be made in accordance with Rule 54.7A(7) of the CPR – Judicial Review of Decisions of the Upper Tribunal – where the usual deadline of 3 months is reduced to 16 days. CPR 54.7A(7) states:
“(7) The court will give permission to proceed only if it considers –
(a) that there is an arguable case, which has a reasonable prospect of success, that both the decision of the Upper Tribunal refusing permission to appeal and the decision of the First-tier Tribunal against which permission to appeal was sought are wrong in law; and
(b) that either –
(i) the claim raises an important point of principle or practice; or
(ii) there is some other compelling reason to hear it.”
Appeals in the Court of Appeal
An application for permission to appeal a decision of the UT to the Court of Appeal must be lodged with the UT within 3 months of the date the UT sends notice of its decision (r.44(3)). The legal test for granting permission to appeal to the Court of Appeal is a higher one than merely showing that there is an arguable error of law. The test that has to be met is that: (a) “the proposed appeal raises some important point of principle or practice, or (b) there is some other compelling reason for the relevant appellate court to hear the appeal” (Appeals from the Upper Tribunal to the Court of Appeal Order 2008, SI: 2008/2834). When the UT notifies the claimant of its decision to either grant or refuse permission (r.45(4)), the covering letter will contain details of the right to make an application to the Court of Appeal (r45(4)(b)) and will refer to a deadline of 21 days – CPR 52.4(2)(b).
Judicial review and welfare benefits
The Government’s consultation paper on the reform of legal aid (Cm 7967) stated that judicial review in respect of welfare benefits would remain in scope:
“As with other areas of law, funding for judicial review will continue to be available for benefits cases. Such cases are likely to occur where there are delays in making decisions on applications for benefits, or delays in making payments, or where there has been suspension of benefits by authorities pending investigation” (para 4224).
Paragraph 19(2)(a) of Schedule 1, Part 1 to LASPO provides that judicial review for welfare benefits cases remain in scope. A public law challenge by way of judicial review can be covered by the category of work in which the principal matter or proceedings appear, or by the category which relates to the underlying substance of the case – for example, where someone is facing possession proceedings as a result of to an outstanding housing benefit claim, then the work could come under the Housing category. Otherwise, judicial review is covered by the Public Law category: see Standard Civil Contract 2013, Category Definitions paras 6, 13 and 28 and the Legal Aid Manual: Contracts, Volume 2, July 2013, Part C, p 419.
Where the welfare benefit decision under challenge does not carry a statutory right of appeal, such as a refusal to make a short-term advance of benefit or a decision not to award a discretionary housing payment, then this will, in principle, be susceptible to judicial review, subject to the usual provisos that there has been compliance with the judicial review pre-action protocol and that all genuine alternative remedies have been exhausted. Where, however, the welfare benefit decision carries a right of appeal to a tribunal, for example, a refusal to make a hardship payment or revise a decision not to award arrears of housing benefit, then the Administrative Court will, as a general rule, expect this remedy to be used as an alternative to judicial review, unless there are exceptional circumstances: see R v IRC ex parte Preston  UKHL 5. What might count as exceptional circumstances will depend on the facts in a particular case. But the claimant would need to point to something – such as the urgency of the matter or the degree of hardship being experienced – which demonstrates that in their particular case the statutory appeal route would not amount to an effective or suitable remedy.
Under LASPO, public funding is only available for a residue of welfare benefits cases, i.e. appeals on a point of law in the UT and the higher courts as well as a handful of judicial reviews. According to official figures, over the period of one year, at total of 17 civil representation certificates were issued for welfare benefits (for both judicial review and appeals to the Court of Appeal or Supreme Court): Legal aid statistics in England and Wales – Legal Services Commission 2012-2013, table 8, p 34. This represents a drastic reduction in the number of cases where advice and assistance is available to those disputing welfare benefits decisions compared to what was previously available under the legal help scheme, when some 89,000 cases (matters) were completed over 2012-2013: Legal aid statistics in England and Wales – LSC 2012-2013. Despite the obvious shortcomings in the present scheme (i.e. the lack of help at the first stage of an appeal and the lack of representation at oral hearings), the funding of appeals on a point of law to the UT nevertheless represents an opportunity to make a significant contribution to the law, practice and procedures in the field of welfare benefits and promote the rights of vulnerable claimants more generally through the creation of useful precedents, which could affect thousands of claimants.
A LASPO checklist for welfare benefits
Below is a list of the public funding that is available for welfare benefit appeals on a point of law and in judicial review proceedings:
- Legally aided advice and assistance for advice on whether or not to submit an application for permission to appeal to the Upper Tribunal (following a refusal of permission by the First-tier Tribunal);
- Legally aided advice and assistance for an application to the Upper Tribunal for permission to appeal to the Upper Tribunal and for substantive appeals on a point of law at the Upper Tribunal;
- Legally aided advice and assistance for advice on whether or not to submit an application for permission to appeal to the Court of Appeal;
- Legally aided advice, assistance and representation for an application to the Court of Appeal for permission to appeal, and for a substantive appeal;
- Legally aided advice and assistance for advice on whether or not to apply for judicial review relating to welfare benefits in the Administrative Court; and
- Legally aided advice, assistance and representation for an application for judicial review relating to welfare benefits in the Administrative Court.