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Judicial Review of Local Authority Welfare Schemes

Michael Spencer

CPAG Solicitor

March 2014

JUDICIAL REVIEW Introduction to

What is Judicial Review?

• Remedy of last resort

• High Court

• Challenges to decisions of a public nature

• Looks at process not merits

• Doesn’t look at factual disputes

• Discretionary remedy

• Time limits

• Sufficient interest

What can be challenged?

• Decisions

• Failure to make decisions

• Unlawful policy or guidance

• Refusal to do something

• Failure to do something in time

• Administrative practice

Who can bring a JR?

• Must have “sufficient interest”:

• Individual; or

• Representative organisation, in the public interest.

What can you complain about?

• Error of law: decision-maker has got the law wrong.

• Ultra vires: authority has acted outside of the powers granted to it by Parliament.

• Failure to exercise of discretion: has “fettered” its discretion.

• Failure to apply its own policy.

• Irrationality: so unreasonable no reasonable authority would make that decision.

• Procedural irregularity: authority has not followed a fair or lawful procedure.

Human Rights

• Section 6 HRA: Authority must act in a way that is compatible with the Convention.

• Article 3: “Inhuman or degrading treatment”

− R(Limbuela) v SSHD [2005] UKHL 66

• Article 8: “private or family life”

• Article 1 Protocol 1: “peaceful enjoyment of possessions”

• Article 14: “rights secured without discrimination on any grounds including… other status”.

Discrimination

• European Convention on Human Rights:

− Article 14: “rights secured without discrimination on grounds including… other status”

− Burnip v SSWP [2012] EWCA Civ 629

− R(MA and Ors) v SSWP [2014] EWCA Civ 13

• Equality Act 2010:

− Public Sector Equality Duty (s149):“due regard to the need to eliminate discrimination and promote equality of opportunity”

− protected characteristics (disability; gender reassignment; marriage and civil partnership; pregnancy and maternity; race; religion or belief; sex; sexual orientation).

The JR procedure

1. Pre-action protocol.

2. Issue proceedings (High Court)

3. Acknowledgement of Service.

4. Permission.

5. Final Hearing.

6. Appeals:

a) Court of Appeal;

b) Supreme Court;

c) European Court of Justice / European Court of Human Rights.

Time limits

• Must be filed (a) promptly; and (b) in any event no later than 3 months after the grounds to make the claim first arose (Civil Procedure Rules 54.5)

• When did the grounds first arise?

− Date on which LA approved the policy/scheme?

− Date on which the Claimant was refused assistance?

− After an unreasonable delay?

• Court has discretion to extend the time limit.

• Consider asking for:

− Urgent consideration

− Interim relief

Legal Aid for judicial review

• LASPO 2012 (LASPO), Schedule 1 para 19

− Legal help. (15 matter starts)

− Investigative representation (merits unclear)

− Full representation (to issue proceedings).

• Means test:

− Income (passported benefits)

− Capital.

• Merits test :

− Prospects of success very good, good or moderate.

− Proportionality test.

− Overwhelming importance to the individual or significant wider public interest.

2. LOCALISATION OF THE DISCRETIONARY SOCIAL FUND

The Social Fund

• Established in 1988 “to concentrate help on those facing greatest difficulties in managing on their income”

• Two parts:

− The regulated social fund

− The discretionary social fund

• Administered by Social Fund Officers

• Social Fund Inspector Review Service (review within 10 working days, or for certain crisis loans on the day).

Regulated Social Fund

• One-off payments for specific circumstances:

− Sure Start maternity grants

− Funeral expenses payments

− Cold weather payments

− Winter fuel payments.

• Conditions of entitlements laid down in regulations.

• Still administered by DWP.

Discretionary Social Fund

• One-off payments for emergencies and items that are difficult to budget for:

1.Crisis loans.

2.Community care grants.

3.Budgeting loans.

• Conditions of entitlement were set out in directions, but payments are discretionary and budget-limited.

Crisis Loans

• Interest-free loans (not exceeding £1500)

• Available to anyone (whether on benefit or not)

• If cannot meet their immediate short-term needs in an emergency or as a consequence of a disaster.

• Repayments may be made directly from benefit where possible.

• Loan must not be for an ‘excluded item’.

• Average crisis loan award 2010/11 = £83.10.

•

Community Care Grants

• Non-repayable grants

• Must be in receipt or imminent receipt of a means tested benefit.

• Awarded for a range of expenses including household equipment.

• Primarily intended to support vulnerable people to remain in or return to the community or to ease exceptional pressure on families.

Community Care Grants (2)

Intended to:

• Establish yourself (or family member) in the community or remain in the community.

• Ease exceptional pressures on you or your family.

• To allow you, or your partner, to care for a prisoner or young offender on temporary release.

• To help you (or family member), with travel costs within the UK to visit someone who is ill, to attend a relative’s funeral, to ease a domestic crisis or to move to suitable accommodation.

Community Care Grants (3)

• Furniture, cookers, beds, bedding and household equipment, floor covering, curtains and heaters.

• Moving expenses, including removal costs, fares and storage charges.

• Connection charges or reconnection charges for utilities.

• Items which will improve living conditions, e.g. minor repairs, redecoration, washing machine.

• Clothing and footwear.

• Items needed because of disability (e.g. wheelchairs, stair lifts).

Localism

• “The time has come to disperse power more widely in Britain today.” (Coalition Agreement, 2010)

• ‘It is difficult in a centrally administered system for staff to exercise a high degree of discretion. For example, in the case of Crisis Loans, where it is necessary to determine if there is a severe risk to the applicant’s health or safety. These services can be more effectively run locally where they are linked to other support services.”

Welfare Reform Act 2012

• Abolished:

− Crisis loans;

− Community care grants.

• To be replaced by local authority provision.

• Budgeting loans and alignment payments replaced by short term benefit advances

Local Authority Welfare Schemes

• No new statutory powers.

• Funds not ring-fenced:

− “…we expect the funding to be concentrated on those facing greatest difficulty in managing their income, and to enable a more flexible response to unavoidable need, perhaps through a mix of cash or goods and aligning with the wider range of local support local authorities/devolved administrations already offer. In short, the funding is to allow you to give flexible help to those in genuine need.”

− “…spending decisions are, and will continue to be, a matter for local authorities”.

• (“Settlement” letter Steve Webb to LA Chief Execs 9 August 2012)

How do you find your local scheme?

• The Local Authority should be encouraged to publicise its criteria for making awards, the details of what type of awards it makes and the scheme for challenging decisions.

• If it does not publicise this information then can request under s.1 Freedom of Information Act 2000.

• Local advice organisations may wish to publicise the guidance themselves and/or to produce leaflets about the local rules.

Local Schemes: Common problems (i)

• In-kind support only, or unless exceptional circumstances (81% of schemes)

• No longer provide loans (62% of schemes) or provide with interest (through credit unions)

• Direct funding to local voluntary groups, e.g. food banks, furniture projects.

• Not providing support for rent in advance / deposits.

(Children’s Society Report “Nowhere to turn? Changes to emergency support”, 2013)

Local Schemes: Common problems (ii)

Stricter eligibility criteria:

• Must be receiving out of work benefit / no access for working families (25% of schemes);

• Local connection / minimum residency in the borough (around half)

• Excluded if able to access other forms of credit or support from friends and family.

• Restrictions for under 18s (8 schemes).

• Restrictions on repeat awards or claims.

• (Children’s Society Report “Nowhere to turn? Changes to emergency support”, 2013)

Local Schemes: Common problems (iii)

• Restrictions on application methods, e.g.:

− Only one option for accessing (16% phone, 10% online, 2 postal). Disability discrimination?

− Only through referral by authorised agents.

• Time limits for making a decision:

− 43% were unable to establish how long it will take.

• Reviews:

− only 63% of schemes offer a formal internal review process.

(Children’s Society Report “Nowhere to turn? Changes to emergency support”, 2013)

3. CHALLENGING A WELFARE POLICY BY JUDICIAL REVIEW

Error of law / ultra vires

• Does the scheme comply with existing duties?

− Children Act 1989

− National Assistance Act 1948

− Housing Act 1996

• S1 of the Localism Act 2011:

“A local authority has power to do anything that individuals generally may do.”

Doesn’t enable LA to do anything it couldn’t do under a pre-commencement power.

− R (MK) v London Borough of Barking and Dagenham [2013] EWHC 3486

Other grounds

• Have the funds been used for the purpose intended in the settlement letter?

• Failure to exercise of discretion: has the authority “fettered” its discretion?

• Has the authority applied its own policy? If not are there good reasons for departing from it in this case?

• Irrationality: is the policy or decision so unreasonable no reasonable authority would make that decision?

Procedural irregularity

Did the local authority:

• Comply with the public sector equality duty?

• Hold a consultation?

• Is the procedure for deciding on claims fair?

Discrimination

• Does the scheme disproportionately disadvantage a group with a protected characteristic? E.g. women, ethnic minorities?

• Does it do enough to protect victims of domestic violence and Roma people, so that they can live in the community?

• Are reasonable adjustments made for disabled access?

• Where there is indirect discrimination, is it justified?

− direct discrimination cannot be justified.

Human Rights

• Is anyone left destitute as a result of the scheme?

• Article 3 or Article 8 may be engaged.

Some examples:

• The scheme excludes anyone who has not lived in the borough for at least 6 months.

• You can only apply for support by telephone.

• There is a fund to hep with the cost of moving after an “emergency”. This only includes natural disasters.

• The Council announces that it is closing the fund from next April.

• The target for deciding claims is three weeks.

• The Council will only provide support to people on means tested benefits.

Alternative remedies / solutions

• Internal review

• Local Government Ombudsman.

• Freedom of Information request.

• Complaint to councilor or MP.

• Point to good practice by other local authorities.

• Organise a local campaign.

CPAG Training

CPAG’s experience in the welfare rights field is unrivalled and this is reflected in the quality of our training. Our courses cover all aspects of welfare benefits, tax credits and the welfare rights system. We run a variety of courses throughout the year at venues across the UK, including London, Manchester, Birmingham, Newcastle, Liverpool and Cardiff.

Please keep an eye on our website as new training dates and locations are added throughout the year.

www.cpag.org.uk/training

Also, all of CPAGs courses can be delivered ‘in-house’ on a date and at a venue to suit you.

Providing a course in-house can be more cost effective - saving on time, travel and accommodation costs. We provide the expert tutor(s) and all training materials.

CPAG Publications

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