High Court Judge Mr Justice Charles dismissed an application for judicial review by the Disability Law Service against the Secretary of State for Justice Kenneth Clarke at an oral hearing on the 2nd February 2012. Disability Law Service was challenging the Secretary of State’s contention that his proposal, that welfare benefits and wills advice should be removed from the scope of legal aid, complies with the Equality Act 2010. Mr Justice Charles decided that the court has no right to investigate whether or not the Secretary of State has complied with the Equality Act.
In court Mr Clarke argued that the court did not have a constitutional right to scrutinise his purported compliance with the public sector equality duty as that is a matter for Parliament alone.
DLS maintains that whether he has complied with the duty or not is a legal not a political question and Mr Clarke’s actions are therefore reviewable by the court. Unfortunately Mr Justice Charles disagreed.
The Government’s equality impact assessment confirms that at least 58% of those who require advice for welfare benefits appeals are ill or disabled. The Secretary of State claims they do not need legal aid to challenge decisions regarding their benefits because the relevant law is simple and because welfare benefits claims “are essentially financial in nature and as such are of lower objective importance than those concerning fundamental issues such as those involving a person’s safety or liberty.‘ Neither proposition was accepted by any of the 5000 who responded to the consultation, most of whom, along with DLS, believe that the withdrawal of legal aid will have a devastating effect on disabled persons who are reliant on welfare benefits. Baroness Hale said in another case:
“The benefits system is necessarily enormously complex … The general public cannot be expected to understand these complexities. Claimants should not be denied their entitlements simply because they do not understand them.”
Sean Rivers, Social Welfare Solicitor at the Disability Law Service, said:
‘The statement by the Secretary of State that disability benefits are of ‘low importance’ misunderstands the role of welfare benefits for disabled people, namely to increase their independence and minimise the disadvantages of their disability. The complete removal of legal aid at a time when the government is pushing through massive and incredibly controversial reforms to the benefits system will be a disaster for disabled people and others who claim benefits.’
Mr Clarke states that in proposing the reductions in the scope of legal aid and preparing the Legal Aid, Sentencing and Punishment of Offenders Bill, he had “due regard” to the needs of disabled people and in particular the need to remove or minimise the disadvantages they suffer. In an attempt to garner support for his proposals and ensure the Bill becomes law he has publicly stated that he has discharged his “public sector equality” duty contained in s.149(1) of the 2010 Act.
DLS acknowledges that it cannot have the Bill amended or withdrawn. However DLS argues that the Secretary of State cannot state that he has carried out a lawful Equality Impact Assessment without the courts having the right to question the assertion. DLS requested that the Court make a ‘declaration’ that Mr Clarke’s actions in relation to the Bill are unlawful.
DLS has taken advice from Jamie Burton, Barrister from Doughty Street Chambers and are considering appealing the decision.
For further information on this news item please contact:
Sean Rivers
Solicitor, Social Welfare
0207 791 9826
Email: socialwelfarelaw@dls.org.uk