Most of us know by now that welfare benefits is out-of-scope in #LASPO. This concomitant loss of funding for legal aid work may mean that CABx and legal centres shutting in the context of a problematic finding. This is particularly ludicrous given that as many as a third of people claiming incapacity benefits who are declared fit-for-work later may go on to win appeals against the decision.
Nikki Neufeld, of the Pembrokeshire Citizens Advice Bureau, said that nationally, in new Employment and Support Allowance claims that 41% of all fit for work decisions have been appealed against and, of the appeals heard between December 2010 and November 2011, 32% were successful.
The Disability Living Allowance (DLA) is being replaced by the Personal Independence Payment (Pip) next year. Approximately two million DLA claimants are to be reassessed as part of the change—and as many as 500,000 will be denied the new benefit. The Coalition Government hopes to cut at least 20 percent, almost £2.2 billion annually, off the bill.
There is now an overwhelming case file of perplexing examples of decisions made lawfully. For example, Paul Mickleburgh, 53, has undergone a series of operations over the past 33 years, including four failed transplants, and has suffered 14 heart attacks. The father-of-three says he is the victim of changes which involve transferring tens of thousands of Scots claimants off incapacity benefit or severe disablement allowance and on to the new Employment and Support Allowance (ESA). He criticised the Government after being told to attend work-focused interviews and actively look for employment or face a cut in benefits.
In September 2010, Jan Morgan had a brain haemorrhage, which caused a severe stroke that left her cognitively and visually impaired, doubly incontinent and totally paralysed on her left side (in her own words). The prognosis was that she would need 24/7 care for the rest of my life. She was 50 and her youngest child was aged just 12 years. Astonishingly she “was politely informed that [her] benefit had been stopped as [her] medical certificate had expired.” Also, an online petition has been raising the awareness of cutting of benefits opposing plans by the Department for Work and Pensions, which could lead to the blind and partially-sighted being denied existing benefits. One recipient said, “I have more than 36,000 signatures, which have come from disabled people and those from all walks of life. They include the chief executives of large organisations, to those who just care about welfare reforms being totally unjust.” Indeed, a CWMCARN man who was declared fit to work despite being registered blind and suffering from rheumatoid arthritis is appealing against the decision.
Even veterans are not safe, it seems. Officials have estimated that a total of 500,000 people will lose disability benefits under Mr Duncan Smith’s plan for a “more focussed” allowance called the Personal Independence Payment available only to those in “genuine need” of support. In a formal submission to the Department of Work and Pensions’ consultation on the reforms, the Royal British Legion apparently has warned that the criteria that could be applied to the new benefit could hit limbless ex-Servicemen especially hard.
The social media have been a Godsend for many disabled citizens. Sue Marsh has been relentlessly raising awareness of the issues she has been facing on her ‘Diary of a Benefit Scrounger’ blog, and Kaliya Franklin was recently nominated for the shortlist of the Orwell Prize 2012 for her blog “Benefit Scrounging Scum”. The impact of the Coalition, felt by many disabled citizens, is now finally being recognised in the wider media. For example, Jess Thom writes:
“Disabled people are right to feel like the hardest hit by the coalition’s relentless cuts. On the national level there’s the planned abolition of disability living allowance – a move designed to make 500,000 disabled people ineligible for basic support – or the health bill, which will privatise the NHS by the back door and make it harder for disabled people to access the services they need. And the brutal cuts continue at a local level affecting countless crucial frontline services.”
Any law in the UK has to be proportionate, and there is a European legal doctrine of proportionality which oversees this. The concerns about the disability benefit legislation, as regards human rights, are well documented (see for example a previous article on this blog). The European doctrine of proportionality means that, ‘an official measure must not have any greater effect on private interests than is necessary for the attainment of its objective’:Konninlijke Scholton-Honig v Hoofproduktchap voor Akkerbouwprodukten [1978] ECR 1991, 2003.
Proportionality is probably not a ground for review separate from judicial review, but when a decision is challenged by judicial review the new approach required under the HRA was described by Lord Steyn in R (Daly) v The Secretary of State for the Home Department [2001] 2 AC 532, paragraphs 25 – 28. Exactly how the courts should approach issues of proportionality was discussed by Lord Steyn in the case of R (Daly) v SSHD [2001] 2 WLR 1622, in which he said at paragraph 27:
The contours of the principle of proportionality are familiar. In de Freitas v Permanent Secretary of Ministry of Agriculture, Fisheries, Lands and Housing [1999] 1 AC 69 the Privy Council adopted a three stage test. Lord Clyde observed, at p 80, that in determining whether a limitation (by an act, rule or decision) is arbitrary or excessive the court should ask itself:
“whether: (i) the legislative objective is sufficiently important to justify limiting a fundamental right; (ii) the measures designed to meet the legislative objective are rationally connected to it; and (iii) the means used to impair the right or freedom are no more than is necessary to accomplish the objective.”
The response to the attack on the disabled should not just be a moral one, then. The response should be a legal one.
