Wednesday, 29 August 2012

Piss & Vinegar

Here's me coming back from my holidays then, full of piss and vinegar.

Client A has lost her sickness benefits , known as Employment Support Allowance, or ESA. In order to win sickness benefits, the names of which change like the blowing winds, a real inability to operate in the workplace in spite of all is now required .

I have no problem with this in principle. Our decent British system should try to to sift those who should work, those who could, and those who can't.

The way in which measurement of disability now goes is a number of tests called descriptors. Score 15 points if you can answer questions from whether you can pick up a milk jug with one hand, to whether you get upset and cry in the queue at Tesco's.

It's all like the gymnastics at the Olympics, save that you have to compete for failure, in order to win that dubious prize, last place. You win as little as £65 a week, for the recognition of your disability.

Client A scored no points on her incontinence descriptor, because although she pisses herself on occasion, and more so at night, she has not "voided her bladder" completely, in a regular fashion. Thus, she has only pissed herself a little, but not voided her bladder every time she has to meet the work czar at ATOS.

Client B had his leg blown off by a landmine. He stumps around defiantly, and keeps failing his tests because he turns up to his interviews. If he failed to turn up, he would be failed anyway.

The Paralympics are supposed to make us all warm and fuzzy about this once in a lifetime opportunity to see the victory of human endeavour over adversity.

The bitter truth is that in the same year that Oscar Pistorius was allowed to compete in the mainstream Olympics, after defeating the laughable claim that he was advantaged by having his lower legs removed and substituted by two curly sticks, ATOS may be gaining kudos from being an official sponsor.

The "tightening" of the descriptors means that, whether or not ATOS staff fairly apply the rules in their assessments, and there is plenty of evidence that the interviews are slap  dash affairs done by rote, disabled people will still fail. For example, in the category manual dexterity points used to be awarded for being unable to turn a star headed tap, being unable to pick up a £1 coin, turn the pages of a book, use a keyboard or mouse, and being unable to pour a 0.5 litre open carton. Consideration is also given to the ability to perform one or more of these tasks with only one hand. In the new rules the categories have been significantly narrowed. Thus a person must be completely unable to press a button with one finger , or turn the pages of a book, or pick up a coin, or use a pencil or keyboard or mouse.

It may be objected that a person who is profoundly disabled yet able to press a button with at least one finger has a possible future working with computers say, or in a call centre. Certainly I would accept that people with disabilities are often desperate to work, and where ways can be found for this to happen they should have that opportunity. But most recipients of Employment Support Allowance will be expected to take part in some work related activity anyway in the present scheme. By making the Work Capability Assessment even harder to pass, a claimant is instead forced to claim Job Seekers Allowance, forced to constantly seek employment where in practice there may be very little work that is available or suitable for their skills.

Sometimes DWP staff dealing with JSA claimants realise that there is simply no point in a claimant who was failed their ATOS test claiming work related benefit, and advise claimants to make a fresh ESA claim which will, in the fullness of time, be refused again. Yes, the system is so bad that one part of the Jobcentre is deliberately frustrating the actions of another.

Forty per cent of people who appeal the withdrawal of benefits win at Tribunal. Seventy per cent win if supported by a Law Centre, CAB or similar. As Law Centres and CABs are being deliberately closed down in Legal Aid cuts, do the maths. This Government wants disabled people to fail their benefit tests.

And that is like rubbing salt into fresh wounds. Or, shall we say, vinegar.





The Court is closed after 2 pm when Red Pepper arrives to lodge our last day, last gasp appeal. Various legal documents have to be delivered, and we have put our hearts into making sure they get there on time.

Unfortunately this time Red Pepper is denied access to the Court, because it has closed early. It seems the County Courts often close at 2pm in London these days, perhaps on account of the Olympics, who knows? They call it operational efficiency.

If Pepper can't get in the door with an appeal and get a receipt, the appeal may be out of time.

If you are a lawyer the worst possible thing is to hear the words "Your application is late . Your case is struck out." You lost dude, you suck. How to explain this to the client?

The result could be that a homeless family will be flung onto the streets. Or then again, it might concern a deduction of as little as £15 a week from a family with an income of £120 for a Council Tax debt, with the threat of prison.

OK, in homelessness appeals the Court has a discretion to accept an appeal out of time, and when we act promptly by filing the next day we are graciously given leave to do so, after a time. In the circumstances, the Court couldn't reasonably have done anything else. But drafting additional papers explaining the circumstance and then taking the papers back takes more time and ups the cortisole levels for everyone.

OK, prison doesn't happen very often for Council Tax, but it's a worry. It could happen, which is why there is Legal Aid debt advice (for the present). It is not so far from Mr Micawber in Dickens' London, who went to jail jailed for debt, to the East End in Olympic Hackney today, full of golden medals. A surprisingly large number of people still believe that one can go to prison for debt, which is usually not the case (save for wilful nonpayment of Council Tax).

It would be a cheap shot to criticise the Courts for inefficiency, but District Judges up and down the land are grey faced by the amount of documents they have to deal with- archaically known as "box work".  Cuts to front line staff and closure of Courts means the papers they get are increasingly unreliable.

The sad truth is that cuts in funding mean that there are less Court staff trying to do more, as possession claims rocket, and something has to give. Another sad truth is that in public life, very little works properly any more.

In order to enforce the rights of poor people effectively, we rely on the Courts and Tribunals to be open. It would be a pompous hypocrisy to say that I always wish Justice to be swift, as often administrative delays work in my clients' favour, but there are certain cases where it is crucial that legal documents can be filed on time.