PLP worked in partnership with the University of Exeter to set up an Exceptional Case Funding (ECF) clinic as part of the University of Exeter’s Community Law Clinic. The research assessed the feasibility of extending access to ECF through university law clinics. This included taking into account the practical experiences of setting up the clinic, and the perspectives of other institutions running similar schemes or considering setting up a similar project.
The findings demonstrate the practical issues encountered by universities engaging in ECF work, and provide recommendations for universities looking to expand their pro bono work by training students to assist members of the public with ECF applications. At a practical level, the research assisted the University to set up an ECF clinic in the academic year 2017/18, which continued to run in 2018/19.
PLP has published research relating to this project, Exceptional Case Funding Clinics.
In order to claim benefits, people are required to make an agreement with the Department for Work and Pensions about what they will do to look for work and improve their chance of getting work. These agreements can often contain unreasonable or unfair requirements failing to take account of physical and mental health problems, caring responsibilities and other factors. Failure to live up to these unfair requirements then leads to claimants being sanctioned as they are effectively being set up to fail.
Claimants often don’t seek advice until after being sanctioned, and don’t realise they could have requested reasonable adjustments to their agreements, or not agreed to unfair conditions in the first place. By delivering training to frontline mental health and homelessness workers about the changes that can be requested, PLP is ensuring client’s fairer access to benefits and enabling them to challenge decisions when things go wrong.
Under the Freedom of Information Act, PLP, acting on behalf of a concerned individual, obtained information from the Home Office revealing that a visit by its officials to Eritrea in December 2014 was made in order to discuss reducing Eritrean migration to the UK. At the time, the grant rate for Eritrean asylum claims was over 85%. The disclosed documents showed the Home Office doubted the reliability of Eritrean government officials, and it could not significantly reduce the asylum grant rate. Despite this, in March 2015 the Home Office changed its policy position, which led to a reduction in the number of Eritreans it recognised as refugees to 48% by June 2016. In a majority of cases where the Eritreans lodged an appeal, the independent judiciary found the Home Office had made the wrong decision. However, the drop in the initial grant rate between July 2015 and June 2016 has had the effect of excluding many Eritrean unaccompanied children from being admitted to the UK under the ‘Dubs’ amendment policy. This is an example of PLP using information rights to expose poor policy making by the UK Government with the effect of denying vulnerable people assistance.
Alison Pickup, PLP’s Legal Director, said: “The fact that the Home Office has excluded many Eritrean children in France from the possibility of being relocated to the UK under the ‘Dubs’ amendment on the basis of a statistic which is a result of its own flawed country guidance is a tragedy.”
This work led to a front page article in the Guardian, here : https://www.theguardian.com/uk-news/2017/jan/22/home-office-eritrea-guidance-softened-to-reduce-asylum-seeker-numbers
Using specialist legal advice to inform policy
PLP’s Legal Director advised the children’s charity Article 39 about the lawfulness of the controversial “innovation clauses” in the Children and Social Work Bill 2016. The clauses would have allowed the Government to exempt local authorities from their statutory duties to vulnerable children in order to “test new ways of working”. Article 39 used PLP’s advice to inform its successful advocacy and campaigning around the clauses which were defeated in the House of Lords and dropped by the Government when the Bill returned to the Commons.
“I came to PLP for help getting legal aid exceptional funding as I could not find anyone else to help me. I lost my job and after that I was not able to make any progress in my case because I had no legal aid and no way of paying for a lawyer. Without PLP’s help I would have found it very difficult to have the same contact with my children as an able-bodied person. I am disabled and I talk through a voice box which people often do not understand. With the help of my lawyer, I was able to get a fair hearing from the court and now have more contact with my children.”
Stricter evidence requirements were preventing many survivors of domestic abuse from getting legal aid. PLP represented the charity Rights of Women in a challenge to the evidence requirements. Following the Court of Appeal’s judgment, the Government introduced new regulations which allow applications to rely on a wider range of evidence of domestic abuse.
The impact of the case is illustrated by the Legal Aid Agency’s own statistics: subsequent to the case in April-June 2016 over 50% more applications for legal aid in family cases were received from survivors of domestic violence, and there was a 35% increase in the number of applications granted.
PLP represented RF, who brought a challenge to part of the Government’s 2017 Personal Independence Payment (PIP) Regulations. The Regulations explicitly excluded applicants receiving higher levels of benefit if they could not undertake certain activities because of psychological distress. The judge quashed the Regulations because they discriminate against those with mental health problems in breach of the Human Rights Act. Because they were discriminatory, the judge also found that the Secretary of State did not have lawful power to make the Regulations (i.e. they were “ultra vires”), and that he should have consulted before making them, because they went against the very purpose of the PIP. RF’s claim was supported by The National Autistic Society, Inclusion London, Revolving Doors and Disability Rights UK. All of those organisations gave statements to the court that the Regulations were unfair and that the intention to treat those with psychological distress differently had not been made clear in the early PIP consultation stages. The claim was also supported by two interveners: Mind and the Equality and Human Rights Commission (EHRC). The EHRC made written submissions to the Court on the ongoing and persistent breaches by the UK Government of its obligations under UN Convention on Rights of Persons with Disabilities arising from its austerity measures. The Judge found that this inconsistency with the UN Convention supported his finding that the measure had no objective justification.
In his judgment Mr Justice Mostyn noted (para 59) that “The wish to save nearly £1 billion a year at the expense of those with mental health impairments is not a reasonable foundation for passing this measure.”
In a ground breaking judgment the Employment Tribunal upheld numerous claims, including those for unpaid wages and religious and race discrimination, brought by Mrs Tirkey, anIndian woman kept in domestic servitude by her employers for 4 ½ years.
The Legal Aid Agency refused to fund Mrs Tirkey’s representation for 17 months, suggesting that the case was not of “sufficient importance or seriousness” and that it was “only a claim for money”. PLP helped Ms Tirkey to apply for legal aid Exceptional Case Funding, which was only successful after PLP began legal action on her behalf. The case will affect future claims by victims of discrimination and servitude and would not have been possible were it not for PLP’s Legal Aid Support Project.