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Judges reprimand Legal Aid Agency for failure to fund Upper Tribunal appeals
New three Judge panel decision VO v SSWP (ESA) [2014] UKUT 352 (AAC) contains a stern reprimand for the Legal Aid Agency on granting certificates in such cases.
In making their judgement. they say:
Legal Aid
61. We were told by Mr Royston that he and his instructing solicitors were acting pro bono because funding had been refused by the Legal Aid Agency. We are grateful to them for doing so and record that we were greatly assisted by their presentation of their client’s case.
62. At our request communications with the Legal Aid Agency was provided to us after the hearing. This includes the refusal letter which is signed by the Head of Complex & High Cost Cases. We have not heard any argument on the content of this letter from the Legal Aid Agency or those representing the claimant. However, as at the hearing we express our disappointment that he was not granted legal aid and record that if he had not been represented pro bono he could not have adequately advanced the legal argument put on his behalf by counsel.
63. More generally we take this opportunity to invite the Legal Aid Agency in other cases where a three judge panel of the Upper Tribunal (AAC) has been convened to hear an appeal to take account of the following:
i) Paragraph 3(a) of the Senior President’s Practice Direction relating to the composition of that tribunal and thus the reasons why the Senior President or the Chamber President can direct a three judge panel. They are that: “… the matter involves a question of law of special difficulty or an important point of principle or practice, or that it is otherwise appropriate …” for there to be a three judge panel.
ii) These directions are not made lightly. When they are the legal issues involved will be of that nature, the appeals will involve individuals and the Secretary of State and decision making will be greatly assisted by written and oral argument.
iii) The role of the Upper Tribunal (AAC) in setting precedent and thus consistency of decision making by First-tier Tribunals in respect of claims for benefits, and thus the wide impact of its decisions on cases heard by First-tier Tribunals.
iv) The great advantage of resolving differences between decisions of single Upper Tribunal judges by a decision of a three judge panel. This is based on the long standing practice that three judge panel decisions will be followed by both the Upper Tribunal and the First-tier Tribunal. That practice avoids the need for such differences between single judges to be determined by the Court of Appeal and so greatly reduces the number of appeals to that court.
v) The fact that the above points indicate that the grant of legal aid in cases to be heard by a three judge panel is likely to be of great assistance to the Upper Tribunal in resolving difficult and important issues of law that, subject to further appeal to the Court of Appeal, will create precedent and thereby assist in the correct determination of a large number of other cases by the Department and First-tier Tribunals.
For a copy of the full decision, see VO v SSWP (ESA) [2014] UKUT 352 (AAC) (word document)
In light of the judgement, and the comments, will the Legal Aid Agency take the issue on board?
Who knows chacha?
Our WBH editor Simon Osborne has also added:
Just to add that this case (the NCN is in fact JC v SSWP (ESA) [2014] UKUT 352) is the Three Judge Panel decision on an important dispute re the WCA, namely re the approach to the meaning of ‘social engagement’ in Activity 16 and whether it can mean any social engagement or is restricted to that characterized by friendliness, geniality etc. as opposed to that for business or professional purposes.
The finding, crudely speaking, is that it can mean any social engagement, but has to be assessed with regard to the nature of the engagement, given that the context of ability in a workplace requires elements of reciprocity, give and take, initiation and response.
yup, another thread on decision in ‘ESA & other incapacity related benefits’ -
http://www.rightsnet.org.uk/forums/viewthread/6893/
cheers ros
yup, another thread on decision in ‘ESA & other incapacity related benefits’ -
http://www.rightsnet.org.uk/forums/viewthread/6893/
cheers ros
ah sorry missed that, thanks Ros :-)
no worries! have put a link in that thread to this one as well.
In light of the judgement, and the comments, will the Legal Aid Agency take the issue on board?
I hate to say it but I doubt it. They seem to have forgotten what “Wider Public Interest” involves; it’s become nigh impossible to litigate cases of the kind of value that Social Security usually involves. You only need look at the recent Legal Aid Statistics to see how many Exceptional Cases certificates they granted last year to see that.
Edit… but rather than ending on such a glum note; sometimes you don’t need a full certificate to get a settlement and it’s still worth trying to bring the beggars to boot; JSA & ESA sanctions may well be a good example of that!
[ Edited: 15 Aug 2014 at 09:42 am by Dan_Manville ]