The ‘rule of law’ and ‘access to justice’ are concepts that are seen as fundamental to the proper functioning of a healthy, democratic society. The business of government, from high-level decisions about when to call an early general election to individual decisions on asylum claims, must be conducted in accordance with the law. To ensure, in turn, the proper functioning of the rule of law, individuals must be aware of the relevant laws and be able to challenge decisions, actions and omissions which are not in accordance with those laws. Put simply, the rule of law, as opposed to the rule of the government in power, becomes perilously fragile if ordinary people are unable to hold public bodies to account.
What, though, has any of this to do with Child Poverty Action Group?
Well, last month, CPAG picked up the Law Society’s Excellence Award in the category of Access to Justice. This was recognition of CPAG’s expansive approach to access to justice which sees access to a lawyer and courts as only one part, and indeed the final part, of an access to justice spectrum. The social security field is governed by a morass of legislation. There is no single piece of legislation that an individual making a social security claim can look to in order to determine how and when to make the claim, what the conditions of entitlement are, how much they are entitled to, how and when they will be paid, and how they can challenge a decision that they did not agree with. The first step in ensuring proper functioning of the rule of law is therefore access to information about the law from an authoritative source.
CPAG’s welfare rights handbook provides answers to all the above questions and, importantly, references the numerous legislative sources underpinning the various conditions, requirements and entitlements. Notably though, the handbook and accompanying tools such as our online resources at AskCPAG and specialist training, are written by welfare rights advisers primarily for welfare rights advisers providing advice and assistance to individuals in local advice organisations throughout the country. This takes us to the second step in the access to justice spectrum, namely access to advice and assistance.
Making a claim for benefits does not necessarily require advice or assistance, though it is often advisable. One stark example is provided by what happened at the beginning of lockdown in March 2020. In the face of reductions in wages or job losses, people claimed universal credit (UC) in unprecedented numbers. The relative ease with which this can be done online meant that many saw no reason to seek advice first. A sizeable proportion of those claiming UC for the first time were already on working tax credit (WTC) and in making their UC claim were unaware that: (i) their tax credits would immediately stop whether or not they were ultimately entitled to UC, and could not be reinstated; (ii) they might be worse off under UC eg, under WTC a person who is furloughed has continued to be entitled to WTC and so exempt from the benefit cap, while under UC you are only exempt from the cap if your earnings reach a minimum threshold which, due to the 80 per cent rate of pay for those furloughed, many would not reach.1 Yet such ‘better off’ calculations are the staple fare of welfare rights advisers.
Enabling individuals to know what their legal entitlements are, through provision of information and advice and assistance, only takes us so far though, if the law is not correctly applied by those administering the system. This brings us to the third step of the access to justice spectrum: the ability of individuals to challenge wrongful decisions. Fortunately, the social security system has a well-established dispute mechanism starting with an internal review of the disputed decision and then appealing it to a tribunal, with tribunals specifically set up to be an inquisitorial rather than an adversarial body, formalities being limited in comparison to court-based litigation and there being no risk of an adverse costs order.
However, at CPAG we were aware that while accessibility to the First-tier Tribunal was not generally an issue, whether by claimants acting in person or supported by a welfare rights adviser, taking appeals to the next level, the Upper Tribunal (UT), was more problematic. Often, while advisers were comfortable running appeals to the first level where the issues were often more factual, they did not feel equipped to identify errors of law so as to take unsuccessful appeals to the next level. In addition, changes to legal aid meant that there was a paucity in organisations with legal aid welfare rights contracts for Upper Tribunal work. It was for these reasons that we established the Upper Tribunal assistance project to up-skill the welfare rights advice sector in pursuing appeals to the UT, ensuring access to justice for claimants did not stop at the First-tier Tribunal.
What though where there is no effective appeal route available?
- 1. It was only several months into the first lockdown that the UC claim form was amended so that a person could only proceed to make a claim once they had ticked a box that explained to them how their legacy benefits would be automatically stopped if they proceeded with the claim, and would not be reinstated whatever the outcome of the claim.