A judgment on the benefit cap: “Real misery is being caused to no good purpose”

The forthright judgment delivered by Mr Justice Collins in [2017] EWHC 1446 is, perhaps, unusual; I have not seen one like it before.   Justice Collins took the view that the application of rules intended to encourage people into work could not reasonably be applied to lone parents with children under the age of 2.  References to work were “entirely irrelevant”.  The system of Discretionary Housing Payments “simply is not working with any degree of fairness.” The idea that people could renegotiate their rent was ‘laughable’ and ‘unrealistic’.  Describing the status of lone parents as a choice was ‘offensive’; one of the cases before him concerned rape in an abusive relationship.  He concludes:  “Real misery is being caused to no good purpose.”

Part of the judgment seems to run against the view of the Supreme Court, but Justice Collins took advantage of the Supreme Court’s haphazard presentation of their opinions on a previous case.  I’ve previously commented on the Supreme Court’s ramshackle and muddled approach to legal commentary; if they can’t agree on what’s being said, they can’t expect people to follow their decisions.

The Social Security (Scotland) Bill has been tabled

The Scottish Government has published the new Social Security (Scotland) Bill, intended to lay the foundations for the delivery of a range of new benefits.  The benefits specifically mentioned in the Bill include

  • Carer’s assistance
  • Cold-spell heating assistance
  • Winter heating assistance
  • Disability assistance
  • Early years assistance
  • Employment-injury assistance
  • Funeral expense assistance
  • Short Term assistance

as well as the specific top up for carers, and the addition of Discretionary Housing Payments.

Most of these clauses are a shell: they are creating powers to introduce specific benefits rather than specifying how the benefits will operate.  We already know in relation to one category, Early Years assistance, that the name of one planned benefit in the general category (“Best Start” Grants) will be different.  That leaves me some hope that they will also sub-divide “Disability assistance”, because mobility needs to be dealt with differently.

Probably more important at this stage are other aspects of the framework.  Three points are worth noting.  First, there is an assumption that people will have to apply for benefits.  This is normal in the UK benefit system, but things don’t have to be done that way – it’s perfectly possible to issue certain benefits without an application (a baby box is an example, and some grants for serious disability could be made via hospitals in the same way. )

Second, reflecting some of the worst excesses of the system in recent years, there is a harsh rule covering overpayments: individual recipients are liable for the mistakes made by officials (s.36), regardless of whether or not they could have been expected to know that a mistake had been made.

Third, and most positively, all the benefits being introduced will be open to appeal to the First-Tier tribunal.

A failure of emergency planning

Following the dreadful events in North Kensington, much of the public criticism has been directed at national politicians.  They’re not exempt from their part of the responsibility, but the PM’s office is not where the primary authority, or responsibility, rests.   Every local authority in the UK has a statutory duty to make plans for emergencies, and the first question should have been about what the local authority was doing to implement its emergency plan. Kensington and Chelsea formed their most recent plan, dated 2015,  in conjunction with Hammersmith and Fulham; the coordination of arrangements with Hammersmith and Fulham is scheduled to come to an end next year, but that does not excuse any failure now.  The emergency plan can be found here, on the Hammersmith and Fulham site (on page 6, it’s co-signed by the responsible K & C officer).   It tells us that what the local authority was expected to do, and they should have been ready to do within three hours of the reported incident (the three-hour guideline is on page 10; during a working day, it should have been activated within 45 minutes).  This, from page 17, identifies specifically the roles that the local authority might be expected to fulfil:

Maintaining statutory services at an appropriate level, wherever possible.

Supporting the emergency services and other organisations involved in the immediate response. This could include:

  • Clearance of debris and restoration of roadways, provision of engineering services and emergency signing.
  • Structural advice, and making safe or demolition of dangerous
    structures.
  • Assistance in the evacuation of the civilian population.
  • Provision of premises for Body Holding Centres, Survivor Reception Centres, Friends and Relatives Reception Centres, briefing and rest facilities for emergency services personnel.
  • Provision of a Temporary Mortuary.

Providing support services for the community and others affected by the incident. This could include:

  • Provision of Emergency Rest Centres, with food and beverages, beds, and welfare services.
  • Provision of a Humanitarian Assistance Centre.
  • Provision of emergency sanitation and hygiene services.
  • Re-housing of those made homeless, in both the short and long term.
  • Inspection of and emergency repairs to housing.
  • Environmental health management.
  • Implementation of measures to control the spread of disease.
  • Establishing Community Assistance Centres for the dissemination of information and support to those affected by the emergency.

Enabling the community to recover and return to normality as soon as possible.

Given the failure of the local authority to provide most of this, it is not surprising that they have not sought to use their existing powers more extensively – such as the power to promote welfare, to purchase property voluntarily, or to invoke compulsory purchases.  But that is what would happen in much of continental Europe  – for example, when Jacques Chirac, as mayor of Paris, effectively commandeered empty property in the rue du Dragon for use by homeless people.  (Chirac, in case people have forgotten, was a conservative.)   That was done by agreement, under threat of requisition.  There are places in North Kensington where the displaced people could live.

 

Will the DUP protect Winter Fuel Payment?

I’ve just been participating in a Radio Scotland phone in on Winter Fuel Payment.  It’s a subject that breeds confusion.  It’s not really a Winter payment; the qualifying date is in September.  It’s not really a Fuel payment: there is no connection between the money paid and energy.  It is a payment, though, and that seems to get people’s goat up – like the caller who was indignant that some people who get the benefit are able to come in to his pub.  The whole point of giving people cash is that they decide how to use it.

The reason that WFP is back on the agenda is that apparently the Democratic Unionist Party are insisting that the Conservatives keep WFP as it is.  This is ironic, because Northern Ireland has nominally been in charge of its own distinct social security system for the best part of a century.  The reason why DWP benefits  matter so much to Northern Ireland is partly a matter of political choice (the application of the so-called “parity principle”), but more recently a because of the Treasury’s insistence that Northern Ireland had to fall into line with DWP’s benefits, whether they wanted to or not.   That closes off the obvious solution, which would have been to allow Northern Ireland to do as they see fit.

There was some disruption to the operation of this site on Sunday – a WordPress update disabled everything, and by the time I got things working again they had substituted a curly-wurly font and a picture of a pouting, underage model in place of the rather sober font and masthead I usually go for.  Things seem to be back to normal now; my apologies to followers. 

Is Mandatory Reconsideration legal?

I questioned the legality of the system of Mandatory Reconsideration nearly a year ago on this blog.   It’s encouraging, then, to see a condemnation of the system by Sir Henry Brooke, a former Lord Justice of Appeal, and I’m grateful to David Webster for drawing attention to it (his briefing will be on the CPAG pages shortly).   Brooke describes DWP guidance on the operation of Mandatory Reconsideration as “an absolutely outrageous interference by the executive with the rule of law.”

Preventing terrorism

In heath care, it’s long been conventional to refer to two or three classes of prevention.

  • Primary prevention is about implies stopping a person from developing a problem in the first place.  It can be done by
    • changing the environment, which has been been the approach of public health services;
    • changing people’s behaviour.  This is attempted through health education; advertising; legal restrictions, like licensing of pubs; and financial disincentives, like taxation on cigarettes and alcohol; or
    • changing people’s physical condition.  Vaccination is the obvious example.
  • Secondary prevention.  This implies identifying a problem in its early stages to prevent its progression, for example through screening of women for breast and cervical cancer.
  • The third class, tertiary prevention, is not used as widely  as the others, because the category is difficult to distinguish from treatment; it aims to reduce the impact of an illness that has happened, or treating diseases so as to stop them from spreading.  To stop cancer recurring, for example, treatment has to be thorough and comprehensive.

It ought to be possible to extend this classification to other things we need to prevent.  I don’t claim to know much about terrorism, but it seems to me obvious that we cannot describe policing of any kind as the “front line” dealing with the problem.  The front line is primary: the people who occupy it include teachers, religious leaders and the broader public.  Primary prevention would aim to change culture, attitudes and behaviour at the source, through social inclusion, education, and civic engagement.  Community policing and early detection by the security services – the focus of much of the present debate – are forms of secondary prevention.  Control orders or the  “Prevent” programme, which respond to stop committed terrorists from acting on their convictions, are tertiary. The response of successive governments in the UK has been heavily geared to tertiary prevention, and that means that while it can limit the damage, it comes in too late for effective prevention.

A ministerial announcement on the next devolved benefits

Angela Constance, the Cabinet Secretary for Communities, Social Security and Equalities, made a statement yesterday about the first changes to benefits reflecting the shift in powers in the Scotland Act.  The new schemes for maternity (the “Best Start” scheme) and for funeral payments will come on line in 2019; although the application process will be “simplified”, they will continue to be one-off, means-tested payments.

Carers Allowance will be the first new benefit to come on line, starting in Summer 2018.  The purpose of the benefit is to bring up the rate of Carers Allowance (currently £62.70 pw) to equal the rate of Jobseekers’ Allowance (£73.10 pw for those over 25).  Rather than taking over Carers Allowance, the Scottish Government has opted to pay a supplement to the DWP-administered  benefit. It will be done by making two payments a year, and while the payment will be made by the new Scottish Social Security Agency, it depends on information drawn from the systems and processes of the DWP.

Transferring responsibility from the DWP to the new agency would have been complex task; that has been avoided.  Paying a supplement weekly or monthly would involve constantly passing information back and forth; that has been avoided, too.  However, the decision will have some substantive implications.  Currently Carers Allowance is not actually paid to many people who are nominally entitled; that will still be true.  Claiming Carers Allowance may have negative effects on a disabled person’s entitlement to the severe disability premium; that will still be true.  There had been talk of extending the benefit to younger people or those in full time education; it looks like that is not going to happen. So, for the while at least, the decision is going to lock the basis of payment a little more firmly to the status quo.

The SNP manifesto is out (at last)

The SNP have published their manifesto today.  They don’t pretend that they’re going to be the next government, but they do represent themselves as an active opposition – more, they suggest with some justice, than might be said for some other parties in Parliament.   The principles are clear and strong: they’re opposed to austerity, they want to take action on poverty and inequality, they want to safeguard Britain’s position in the single market and they want to support public services.  They’re unusual in treating social security as a major issue  – sanctions, the rape clause, pensions, the bedroom tax and the benefits freeze.  And, despite the hollow accusations from opposing parties in Scotland about the SNP’s supposed ‘obsession’, there’s nothing here about independence.

The main point of criticism is a matter of style rather than substance: there’s nothing here that couldn’t have been said within three days of the election announcement.  Waiting so long to put out the manifesto tends to imply that it wasn’t seen as much of a priority, and that is a misjudgment.  People need something positive to vote for, and this manifesto has something to offer.

More manifestos

Manifestos are out from two more parties, neither of which had any seats in the last Parliament.   One was from UKIP, offering a combination of policies designed to appeal to readers of the Daily Express:  lock up criminals, support for “beleaguered” drivers and self-employed people, get rid of foreign aid, more police, criminalise breast ironing (I didn’t know what that was, either), stop funding devolution and how dare anyone say we’re little Englanders?  The other was from the Women’s Equality Party, whose eight point plan for a ‘caring economy” is presented as “challenging the myth that social justice and equality  are somehow separate from our economy.”  They want equal pay, universal child care, integrated health and social care, more accountability for inequality and lots of policy reviews.  It all seemed well-reasoned and very sane,  but maybe that’s because I read it immediately after the UKIP one.

The Green Party manifesto

While the Green Party manifesto is not likely to make much of a contribution to British government in practice, there are two big things to say in its favour.  In the first place, it’s mercifully concise.  Second,  it doesn’t just give us a shopping list of policies: it starts off each section with a statement about general direction and principle.  A manifesto isn’t just a list of policies: voters want to know, and are entitled to know, how a prospective government would go about judging and making decisions on the matters it doesn’t yet know about.  That, realistically, covers far more decisions than any manifesto could possibly anticipate, and that’s what the Greens are telling us.  Other parties take note.

There’s a commitment to a greener economy, but I think we’re supposed already to know what that means.  The specific policies  on ‘the economy’ are mainly concerned with tax and benefits (the foundations of a Basic Income), but the manifesto doesn’t have much to say about how the economy works or how it will change.  Apart from membership of the EU, the main commitments are to public services in health, housing and education, public engagement, environmental protection, human rights and ethical foreign policy – mostly policies that wouldn’t have been out of place in a Labour party manifesto in the days before Blair.